Thursday, July 24, 2014

Interactive Map of Same-Sex Marriage

A detailed and useful map available here.  

July 24, 2014 in LGBT, Same-sex marriage | Permalink | Comments (0)

Saturday, June 21, 2014

Same-Sex Couples to Get More Federal Benefits, but not All

WSJ: Same-Sex Couples to Get More Benefits

The Obama administration announced Friday the extension of more benefits and obligations to same-sex married couples, including plans to allow workers nationwide to take leave from their jobs to care for same-sex spouses.

The White House also is expected to press Congress to pass legislation needed to change some provisions, such as Social Security benefits, to apply to same-sex married couples.

...

During the past year, Justice Department attorneys have consulted with the general counsels of federal agencies to see whether legal barriers remain to extending benefits to same-sex spouses.

In a memo to the president, Mr. Holder will report that they found such impediments in the statutes governing only two agencies: the Social Security Administration and the Department of Veterans Affairs, an administration official said Thursday.

 

While same-sex spouses can receive full benefits from those agencies if they live in states that recognize their marriages, those who reside in "nonrecognition" states are eligible only for a few.

 

"We knew that the two that would be the most vexing are the VA and the Social Security Administration, because there is language embedded in the statutes that founded them specific references to marriage being defined by where the person dwells, rather than being silent," the official said.

June 21, 2014 in Same-sex marriage | Permalink | Comments (0)

Monday, June 16, 2014

Italian Court on Transgender Rights

From the Jurist

[JURIST] Italy's Constitutional court [official website, in Italian] ruled [judgment, in Italian] Wednesday that an Italian law that annuls a marriage once a partner undergoes a sex change operation is against the national interest because the couple may desire to stay together. Wednesday's ruling overturns a judgment from a lower court in Bologna in the case of 43-year-oldAlessandra Bernaroli [Ansa News report], who underwent surgery in 2009 to become a female, four years after getting married as a man. Bernaroli's marriage was automatically dissolved by national law after the transgender operation. The case will now reach Italy's highest court, La Consulta, where a favorable ruling for Bernaroli could make her and her female partner the first same-sex couple in Italy.

June 16, 2014 in LGBT, Same-sex marriage | Permalink | Comments (0)

Italian Court on Transgender Rights

From the Jurist

[JURIST] Italy's Constitutional court [official website, in Italian] ruled [judgment, in Italian] Wednesday that an Italian law that annuls a marriage once a partner undergoes a sex change operation is against the national interest because the couple may desire to stay together. Wednesday's ruling overturns a judgment from a lower court in Bologna in the case of 43-year-oldAlessandra Bernaroli [Ansa News report], who underwent surgery in 2009 to become a female, four years after getting married as a man. Bernaroli's marriage was automatically dissolved by national law after the transgender operation. The case will now reach Italy's highest court, La Consulta, where a favorable ruling for Bernaroli could make her and her female partner the first same-sex couple in Italy.

June 16, 2014 in LGBT, Same-sex marriage | Permalink | Comments (0)

Thursday, May 22, 2014

Today's Status on Same-Sex Marriage

A good summary of the national legal status of same-sex marriage as of yesterday.   See Gay Marriage Map: Where is Same-Sex Marriage Legal?  Except, that it even it is outdated, as Montana now has a court challenge filed. 

May 22, 2014 in LGBT, Same-sex marriage | Permalink | Comments (0)

Thursday, May 15, 2014

Same-Sex Marriage Cases This Week

In case you blinked, here's the latest on the status of same-sex marriage cases:

Oregon denied legal standing to a political group seeking to defend the law.  The AG has refused to defend it.

Arkansas: The Arkansas Supreme Court denied a stay of a trial court order invalidating the state's same-sex marriage ban.  

Idaho trial court denied a stay of the order invalidating the same-sex marriage ban.  An appeal by the government is likely.

Virginia: The federal court of appeals heard argument in the case declaring the state ban on gay marriage unconstitutional, which was stayed pending appeal.

 

May 15, 2014 in Same-sex marriage | Permalink | Comments (0)

Monday, May 12, 2014

Government Files Brief in Sixth Circuit Appeal of KY Same-Sex Marriage Case

We're joined this month by guest blogger, Professor Jamie Abrams from the University of Louisville School of Law. Her scholarly interests include integrating masculinities theory in feminist law reforms such as military integration and domestic violence; examining the tort complexities governing standards of care in childbirth; gendered conceptualizations of citizenship; and legal education pedagogy.  

Last week the Government filed its appeal in Bourke v. Beshear, Kentucky’s Western District Court decision recognizing valid out-of-state marriages.  The arguments raised in this Sixth Circuit appeal are worth a read for many reasons, however, you might consider buckling up in your DeLorean time machine because backward time travel will facilitate maximum reading ease of these arguments.  The full text of the brief is here. 

The government relies heavily on the binding precedential value of Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed by 409 U.S. 810 (1972) for the proposition that same-sex marriage prohibitions can withstand equal protection scrutiny.  The Government then argues that it has a “legitimate economic interest” in regulating the “traditional man-woman marriage model” because “same-sex couples are materially different from traditional man-woman couples” because “only man-woman couples can naturally procreate.”  Thus, the Government argues, “same-sex couples are not similarly situated to man-woman couples” and the marriage distinction withstands equal protection analysis.  The Government argues that “natural procreation” is “of vital importance to the state” and a “stable birth rate” will “support[] long-term economic stability.”  Seems like a surprising approach for the Government to dig in so dominantly on arguments that have been wholly dismissed in other courts.  I was relieved that my Mother’s Day card yesterday did not affectionately highlight my two contributions to the “long-term economic stability” of the Commonwealth.   

May 12, 2014 in Jamie Abrams, Same-sex marriage | Permalink | Comments (0)

Friday, April 11, 2014

In Utah Gay Marriage Case, State Argues Existence and Importance of Gender Differentiated Parenting

In Thursday's oral argument before the 10th Circuit US Court of Appeals in case of Utah's ban on gay marriage, the state emphasized the importance of gender in marriage and the risk of harm from "genderless" marriages.  Essentially that moms and dads are simply different and provide complimentary roles.

 From the State's brief:

“And Utah voters, … reaffirmed among other things their firm belief—also supported by sound social science—that moms and dads are different, not interchangeable, and that the diversity of having both a mom and a dad is the ideal parenting environment.” *** 

Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and even economically when reared in an intact home by both biological parents. Such arrangements benefit children by (a) harnessing the strong biological connections that parents and children naturally feel for each other, and (b) providing what experts have called “gender complementarity”—i.e., diversity—in parenting. *** 

This biological advantage is further enhanced by the unique, gender-based contributions that fathers and mothers make to their children’s wellbeing. While the value of gender diversity in parenting is common sense to many, the notion likewise finds confirmation in a growing body of social science research. As a group of 70 scholars recently concluded, the “empirical literature on child well-being suggests that the two sexes bring different talents to the parenting enterprise, and that children benefit from growing up with both biological parents.” In other words, the benefits flow not just from having two parents of any gender, but from what scholars call “gender-differentiated” or mother-father parenting: “The burden of social science evidence supports the idea that gender-differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable.” Indeed, research shows that men and women parent children differently, and in so doing contribute distinctly to healthy child development.

April 11, 2014 in Family, Gender, Same-sex marriage | Permalink | Comments (0)

Friday, March 28, 2014

Massaro on Religious Exemptions

A timely article by Toni Massaro has been uploaded.  Its titled "Nuts and Seeds:  Disclosure of Religious Exemptions" and its abstract reads:  

Closely watched cases pending before the United States Supreme Court address whether for-profit businesses may claim a statutory or constitutional right to an exemption from general laws that burden religious expression. These cases are part of a wider trend of expanded constitutional rights for for-profit actors, and of increased judicial and legislative sympathy for exemption requests by religious actors.

This Article offers a first look at steps government might take if the current trend continues, and if more exemption requests for commercial actors are allowed. It steps beyond the vigorous debate over whether to grant an exemption, and explores alternatives that may mitigate third-party burdens imposed by such exemptions, without unduly burdening the exempted commercial religious actors. It examines in particular an “exemption-subject-to-notice” option, under which exempted commercial actors would be required to provide notice to adversely affected third parties, or be subject to government-provided notice of their non-compliance. The Article concludes that a notice condition on exit from generally applicable laws is not a problem-free option. Nevertheless, it is worth exploring as a “third way” for government to manage the inevitable liberty collisions of a pluralistic democracy, and is a superb vehicle for illuminating the relative costs of emerging regulatory patchworks.

March 28, 2014 in Religion, Same-sex marriage | Permalink | Comments (0)

Feinberg on Non-Marital Relationship Statuses

Jessica Feinberg, Mercer Law, has uploaded "The Survival of Non-Marital Relationship Statuses in the Same-Sex Marriage Era:  A Proposal."  The abstract reads:  

Based on recent achievements by the same-sex marriage movement and current societal attitudes, it seems clear that it is only a matter of time before same-sex marriage is recognized by the majority of jurisdictions within the United States. When this occurs, society will be left with an important decision regarding whether the widespread legalization of same-sex marriage marks the beginning or the end of the discussion in this country regarding adult relationship recognition. Hopefully, it will mark the beginning of the discussion. Individuals face incredibly limited options when it comes to legal recognition of their important relationships. The federal government and the majority of states recognize only one relationship status, marriage, leaving couples with the narrow choice of marriage or non-recognition. It is time for the United States to follow the lead of other countries in creating an effective and comprehensive system of adult relationship recognition that does not depend solely upon marriage. There is ample evidence that marriage is in trouble in the United States. Increasing numbers of individuals are eschewing marriage for non-marital cohabitation, those who marry do so later in life, and the divorce rate continues to hover around fifty percent. As marriage rates decrease, increasing numbers of individuals are left in the unfortunate position of having inadequate legal protections for their relationships. Many people likely would benefit from the introduction of a third option; namely, a state-based non-marital relationship status that offered a true alternative to marriage and was recognized by the federal government. This article offers an innovative proposal for a new system of non-marital relationship recognition in the United States.

March 28, 2014 in Same-sex marriage, Scholarship | Permalink | Comments (0)

Saturday, March 15, 2014

Subversive Graham Crackers and Gay Dads Commercial

Honey Maid Ad: Gay Dads Are OK - So Long as they are Rich and White

[T]he advertisement highlights the contemporary boundaries and privileging of certain gay identities. Indeed, the men describe themselves as traditional. “Marriage, and a family, and having kids was always important,” they tell us.

 

These men are white. This family is affluent. And they are men; their gender presentation is normative in no way conflicting with traditional conceptions of masculinity. Without denying that the ad reveals the tremendous progress made in the achievement of gay rights and recognition, it simultaneously demonstrates the limits.

March 15, 2014 in Family, LGBT, Manliness, Same-sex marriage | Permalink | Comments (0)

Saturday, February 15, 2014

Kansas Bill Encourages Discrimination against Same-Sex Couples

From my colleague, Will Huhn, Associate Director of the Constsitutional Law Center at Akron, one of four national centers established by Congress.  

The Kansas Bill Authorizing Discrimination Against Same-Sex Couples: What Does it Provide? Is it Constitutional?

In the name of defending religious freedom, the Kansas House recently adopted a statute that would authorize any person or business to refuse service, employment, or employment benefits to same-sex couples. Is it constitutional?

****

[N]otice that the protection extends to "sincerely held religious beliefs ... regarding sex or gender." Not sexual orientation, but "sex or gender." It is difficult to believe that this law was written to justify gender discrimination, but that is how it is written. In fact, the word "sex" is also ambiguous. Is the law speaking of "sex roles" or "sexual acts"? Is it meant to protect "sincere religious beliefs" regarding the proper roles of men and women or proper and improper modes of consensual sexual conduct? ....

If the qualifying phrase relates solely to "employment benefits" then the scope of the law is very broad indeed, permitting gender discrimination across the board by individuals and private businesses in terms of whom they serve and whom they employ, so long as the person or business holds a "sincere religious belief" that persons of that gender are not supposed to engage in certain conduct or have certain privileges.

February 15, 2014 in Business, Religion, Same-sex marriage | Permalink | Comments (0)

Friday, February 14, 2014

Kentucky Opinion Recognizing Out-of-State Same-Sex Marriage

We welcome this morning guest blogger Professor Jamie Abrams from the University of Louisville School of Law.

Advocates for same-sex marriage in the Bluegrass State are toasting fine Bourbon.  Judge Heyburn of Kentucky’s Western District, a George H.W. Bush appointee, struck down on equal protection grounds Kentucky’s ban on the recognition of valid same-sex marriages performed out-of-state.   

While the constitutionality of Kentucky’s own ban was not directly before the court, Judge Heyburn’s opinion in Bourke v. Beshear strongly suggests that Kentucky’s ban sits on perilous constitutional grounds, stating “there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question.”  Op. at 19.  It states that Romer, Lawrence, and Windsor have established the “framework of cases from which district judges now draw wisdom and inspiration,” which have led to “this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled.”  Op. at 23.  Attorneys are expected to file a direct challenge to Kentucky’s marriage ban today. 

After finding the provisions governing out-of-state marriage recognition unconstitutional, the opinion distinctively addressed religious views directly.  The government had argued only that its interest in banning same-sex marriage was to “preserve traditional marriage.”  Although not directly raised in the briefing, Judge Heyburn nonetheless acknowledged that many Kentuckians support the bans based on their religious beliefs and teachings.  Op. at 18.  The opinion acknowledged these concerns and described them as “understandable and deserv[ing] of an answer.”  Op. at 18.  Judge Heyburn responded that:

Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally.  It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it.  Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.  Op. at 18. 

Although the case applied rational basis analysis, the opinion also weighed in on whether sexual orientation is a suspect classification.  The court acknowledged strong precedent suggesting heightened scrutiny is owed; suggested that Lawrence called into question Sixth Circuit precedent relying on Bowers to the contrary; and conducted a cursory suspect class analysis to suggest that “gay and lesbian individuals do constitute a suspect class.”  Op. at 9.  This opinion reads with strong overtones of a “triple crown” victory of recognition of out-of-state marriages, a roadmap to same-sex marriages performed in Kentucky, and a tentative conclusion of sexual orientation as a suspect class.

The full opinion is here: Download BourkevBeshear

February 14, 2014 in Family, Jamie Abrams, Same-sex marriage | Permalink | Comments (1)

Tuesday, February 11, 2014

Sexual Orientation Bibliography

A colleague directed my attention to a fabulously useful bibliography--with active links to articles--about LGBT legal issues: 

http://www.lgbtbib.org/index.php

 

February 11, 2014 in Books, LGBT, Same-sex marriage, Scholarship, Theory | Permalink | Comments (0)

Same-Sex Parents in Ohio File for Both Names on the Birth Certificate

In Ohio, Cincinnati Again Center of Gay Marriage Fight.  The same attorney and the same locale as the watershed case of Obergefell v. Kasich, (S.D. Ohio July 2103) holding it unconstitutional to deny recognitition of a valid out-of-state gay marriage for purposes of a death certificate.  Interestingly, “[t]he city did not defend the law in the Obergefell case, and it won’t defend it in this case,” Deputy Cincinnati Solicitor Aaron Herzig said Monday. “The city does not have any local laws treating same-sex marriages differently from opposite-sex marriages. In 2004, city voters repealed the charter amendment that had prohibited the city from giving legal protections based on sexual orientation.”

February 11, 2014 in Family, Same-sex marriage | Permalink | Comments (0)

Thursday, February 6, 2014

Strategies for Securing a Same-Sex Divorce

I just published Same-Sex Divorce, California L. Rev. Circuit (Feb. 2014). Here's the abstract:

Same-sex marriage is now legal in seventeen states and sixteen countries. With this change, a question increasingly being asked is how same-sex couples can divorce. It is an easy answer for those who live in a marriage equality state; the usual divorce procedures apply. The problem arises for those who live in or move to a prohibition state that does not authorize same-sex marriage. The legal gap between marriage and divorce exists because divorce jurisdiction requires the domicile of a party while marriage does not. “Domicile” is the state where the party resides with the intent to remain. Divorce jurisdiction usually requires residence for six months to one year prior to filing.  Other than the few marriage equality states who statutorily exempt same-sex marriage from these residency requirements and allow those married there to return, the only option seems to be for one partner to permanently relocate to a marriage equality state.

 

Courts confronted with the question of same-sex divorce have responded in conflicting ways. Some courts have denied divorces, while others have granted them. Looking closely at the reasoning of the cases suggests some legal options for courts in marriage prohibition states facing divorce petitions from same-sex couples. These options include limited recognition of the external marriage under conflicts of laws principles; declaring unconstitutional the laws that deny recognition to legal same-sex marriages or that deny same-sex couples access to the courts; or voiding the marriage by annulment.

February 6, 2014 in Family, LGBT, Same-sex marriage | Permalink | Comments (0)

Sunday, January 26, 2014

Hong Kong billionaire dad offers $1 billion to any man.....

....who will marry his lesbian daughter.  It looks more like a bid to rebuke the daughter, not a serious endeavor to get her hitched.  (it takes two to tango, doesn't it?  And the glorious cosmopolitan place that is Hong Kong--where English (along with Chinese) is the official language--isn't exactly breeding ground for arranged marriages.)

(Gigi Chao, with unnamed dogs)

The daughter in question, Gigi Chao, seemed calmly defiant:  

"Respectfully, we can only be true to ourselves, communicate bravely and directly, and be patient. I am confident that we are on the right side of history, so, as they say, it gets better," she said.

"Honestly, I think recognising same-sex relationships is a good start for the lawmakers, instead of sweeping the issue under the carpet and pretending it doesn't exist, which is degrading."

Presently, Hong Kong does have a law banning gender discrimination, but it's not comprehensive: 

The Sex Discrimination Ordinance, enacted in 1995, offers protection in seven areas, including employment, education, housing and participation in government activities. However, while it covers discrimination on the grounds of gender, marital status and pregnancy, it does not cover sexual preference.

January 26, 2014 in International, LGBT, Same-sex marriage | Permalink | Comments (0)

Tuesday, January 14, 2014

The Utah Gay Marriage Conundrum

Ah, finally a little more explanation of how this mess of licensed, solemnized, but unrecognized gay marriages in Utah came to be.  Emily Bazelon (Slate) in Is Eric Holder Making Up Gay Marriage Law as he Goes Along?, reveals THAT THE STATE DIDN'T ASK FOR A STAY in the district court.  Why is anyone's guess - bad lawyering, oversight, politics, assumption that it wouldn't be granted.  And of course the 10th Circuit didn't grant the stay either. 

But the stay should have been granted.  As the US Supreme Court cautioned in two child custody cases last year, Adoptive Couple v. Baby Girl and Chafin v. Chafin courts need to tread more carefully in procedures in family law matters.  Because the effects on families and personal relationships can be devestating.  See Exhibit 1, Utah Marriages.  The Utah district court drastically altered the status quo as to marriage.  The best procedure would have been to stay the order and expedite the appeal.  No marriages lost in the gap, no expectations squashed, and no federalism clashes created. People are not money.  We can't just undo harms with dollars or do-overs. 

January 14, 2014 in Family, Same-sex marriage | Permalink | Comments (0)

Thursday, December 19, 2013

Gay Marriage Now Legal in New Mexico

The New Mexico Supreme Court today struck down bans on same-sex marriage as unconstitutional in the case, Griego v. Oliver.  Seventeen states plus D.C. now recognize gay marriage as legal. 

The Griego Court first applied intermediate scrutiny to analyze the state marriage statutes. 

Because same-gender couples (whether lesbian, gay, bisexual, or transgender, hereinafter “LGBT”) are a discrete group which has been subjected to a history of discrimination and violence, and which has inadequate political power to protect itself from such treatment, the classification at issue must withstand intermediate scrutiny to be constitutional.

It then rejected the purported government interests supporting discriminatory treatment of gay couples.    

The opponents of same-gender marriage assert that defining marriage to prohibit same-gender marriages is related to the important, overriding governmental interests of “responsible procreation and childrearing” and preventing the deinstitutionalization of marriage. However, the purported governmental interest of “responsible procreation and childrearing” is not reflected in the history of the development of New Mexico’s marriage laws. Procreation has never been a condition of marriage under New Mexico law, as evidenced by the fact that the aged, the infertile, and those who choose not to have children are not precluded from marrying. In addition, New Mexico law recognizes the right of same-gender couples to raise children. . . . 

And then it rejected the common tautological argument that denial of marriage was to protect marriage itself.

Finally, legislation must advance a state interest that is separate and apart fromthe classification itself. It is inappropriate to define the governmental interest as maintaining only opposite-gender marriages, just as it was inappropriate to define the governmental interest as maintaining same-race marriages in Loving. Therefore, the purported governmental interest of preventing the deinstitutionalization of marriage, which is nothing more than an argument to maintain only opposite-gender marriages, cannot be an important governmental interest under the Constitution.

 

 

December 19, 2013 in Same-sex marriage | Permalink | Comments (0)