Sexual Orientation and the Law Blog

Dehli High Court strikes down sodomy law

Our colleague Ruthann Robson at the Con Law Blog reports on the decision by the Dehli High Court striking down as unconstitutional a section of the India Penal Code criminalizing sodomy.  The decision is available here.

-SS

Nunn: time to reconsider DADT

Former senator Sam Nunn, who relied on frankly homophobic arguments against gays in the military during the debate 15 years ago about Don't Ask, Don't Tell, said on NBC's Meet the Press Sunday that it's time to take another look at that policy.  "We have gays serving honorably in the military today," he said.

-SS

A new gay march on Washington takes shape

The National Equality March is planned for October 11, 2009.  Although planning for the march seems to have been spurred in the recent weeks by the Obama administration's delays and missteps in dealing with federal-level gay issues such as the "Defense of Marriage Act" and Don't Ask, Don't Tell, the march web site (which still looks very preliminary) states its single goal as "[e]qual protection in all matters governed by civil law in all 50 states."  The march is also on Facebook.

-SS

Senate Judiciary to hold hearing on hate crimes prevention act

This Thursday the Senate Judiciary Committee will hold a hearing on the Matthew Shepard Hate Crimes Prevention Act of 2009.  Attorney General Eric Holder will testify.  More information on the hearing is available here. 

Gay-inclusive federal hate crimes legislation has been a longtime but elusive goal for LGBT advocates.  The legislation passed the House last month 249-175, and has the support of the Obama administration.  A backgrounder on the legislation is available from HRC.

-SS

Principle or penance? Obama to extend benefits to same-sex partners of federal employees

Under growing criticism for his administration's defense of DOMA and DADT and its lack of positive action on gay issues, President Obama will sign an order Wednesday extending benefits to the same-sex partners of federal employees, the AP is reporting.  The move follows Secretary of State Clinton's decision last month to grant such benefits to State Department employees.  (We asked at the time, "If the State Department can do this based solely on a policy decision by Secretary Clinton, why not the rest of the federal government based on a policy decision by President Obama?")

-SS

PBS Independent Lens tackles Don't Ask, Don't Tell

http://www.pbs.org/independentlens/asknot/.  Check local listings.

-SS

Tied Up with Avery Quinn

If you have wondered why I haven't been posting in quite some time, it is due to the birth of my daughter, Avery Quinn.  We are adjusting to life with a newborn ...  Many thanks to Steve for keeping up with the blogging in my absence.

-Sara

Obama administration vigorously defends DOMA in court: it is anti-gay or just politically tone-deaf?

Art Leonard at New York Law School, one of the fairest and most astute observers of gay legal developments, has generally counseled patience to those who are growing restless at the Obama administration's missteps and lack of action on gay issues.  And so it means something when Art asks, in this extended and thoughtful analysis of the administration's motion to dismiss in a lawsuit against DOMA, "Has Obama Administration Gone Over to the Dark Side in LGBT Issues?"

Art points out that the executive branch has an obligation to defend federal laws.

In a stand-off between the legislative branch and the executive branch about the constitutionality of a law, I'm not sure I would feel good about the executive branch being free to decide which validly enacted laws it is going to enforce.  That sounds too much to me like George W. Bush's position that as commander in chief he could ignore any law that gets in his way in carrying out his strategy for preserving national security.  Demanding that the President or the Attorney General refuse to enforce a law with which they disagree as a matter of policy because they believe it may be unconstitutional or because they advocate its repeal is a dangerous demand to make, and arguing that they should refuse to defend an existing federal statute in court comes dangerously close to that.

But it's the tone and arguments the administration has chosen to offer that have provoked serious anger among Obama's LGBT supporters, and for good reason.  Art characterizes the brief as an " aggressive, and in some respects homphobic-sounding" defense of DOMA.

In the brief, the Justice Department argues that DOMA, a statute that candidate Barack Obama ran pledging to repeal, is constitutional and -- get this -- does not discriminate against gay people, even though it says that our marriages are a nullity in the eyes of the federal government and need not be recognized by any state.  Furthermore, and absurdly, they argue that DOMA manifests "neutrality" by the federal government on the issue of same-sex marriage.

Our colleague Ruthann Robson has additional analysis of the filing at Con Law Blog.  The full brief can be found here.  The case arises out of California, and the LA Times reports that the mayors of San Francisco and Los Angeles joined on Sunday in expressing concern about the brief.

-SS

Florida SCt rejects challenge to bar group's amicus brief on gay adoption ban

The Florida Supreme Court has ruled in favor of the Florida Bar Board of Governors, which earlier this year unanimously approved a request from the group's family law section to file an amicus brief in pending litigation challenging the constitutionality of Florida’s statewide gay adoption ban.  In the 5-2 decision, the state Supreme Court rejected a claim by the petitioner, the anti-gay group Liberty Counsel, that the bar's action violated the petitioner's First Amendment rights on the theory that the amicus brief was funded by compulsory dues.  The full opinion is available here.

-SS

Additional insight on this week's denial of cert in the DADT case

Professor Art Leonard has this analysis of the Supreme Court's denial of certiorari in the Pietrangelo case challenging Don't Ask, Don't Tell. 

In response to an item I had posted elsewhere about the Obama administration's defense of the policy, Art explained:

Mr. Pietrangelo's co-plaintiffs also filed a brief with the Court urging it to deny the petition for review. The considered view of those who have been litigating this issue has been that the Witt case, pending in the 9th Circuit, has proved to be a better vehicle for challenging the policy in court. Pietrangelo filed this petition on his own, against the advice of the attorneys who had filed the lawsuit in the 1st Circuit. The Obama Administration's brief opposing review argued that the 1st Circuit case was correctly decided, in a perfunctory way, but emphasized that the other pending case would provide a better venue for considering the policy.

-SS

Responding to 9th Cir ruling on city resolution, Catholic group lashes out at San Francisco officials, comparing them to Nazis

As the San Francisco Chronicle reports, first the Catholic Church ordered Catholic Charities not to place adoptive children with same-sex couples, saying that allowing gay or lesbian couples to adopt "would actually mean doing violence to these children."  Then the city supervisors condemned the Vatican's "hateful and discriminatory rhetoric."  Then the Catholic League for Religious and Civil Rights accused the city in a lawsuit of acting with unconstitutional hostility toward Catholicism.  Then the 9th Circuit ruled that the supervisors had acted for a legal, secular purpose, to protect same-sex couples from discrimination, and not to express disapproval of Catholicism.

In response, the president and chief counsel of the anti-gay-activist Thomas More Law Center has turned up the rhetoric another notch.  "It is not a stretch to compare the San Francisco board's actions," he said, "to that of the Nazi Germany policy of Gleichschaltung, vilifying Jews as an auxiliary to and laying the groundwork for more repressive policies, including the final solution of extermination."

-SS

TIME on Obama's defense of DADT

TIME ponders the gay community's puzzlement and anger over the Obama administration's defense of Don't Ask, Don't Tell:

When Barack Obama sought the presidency, he pledged to reverse the "Don't ask, don't tell" policy preventing gays and lesbians from serving openly in the U.S. military. Yet on Monday, the Supreme Court rejected a gay Ohio soldier's challenge to the law — with the legal backing of none other than the Obama Administration.
...
The Obama Administration, in its brief in the case last month, said a lower court acted properly in upholding the gay ban. "Applying the strong deference traditionally afforded to the Legislative and Executive Branches in the area of military affairs, the court of appeals properly upheld the statute," argued Elena Kagan, who as Solicitor General represents the Administration before the Supreme Court. The bar on gays serving openly is "rationally related to the government's legitimate interest in military discipline and cohesion," her 12-page filing added.

The government's brief in opposition to certiorari is available here.

-SS

Senate holds hearings on gay immigration act

The Senate Judiciary Committee yesterday held hearings on the Uniting American Families Act, which would allow U.S. citizens and permanent residents to sponsor their same-sex partners for family-based immigration.  The Washington Blade has coverage here.  You can access video from the hearing here.  Background on the legislation, including links to the bill text, is available from the Human Rights Campaign.

-SS

New Hampshire becomes 6th state to authorize same-sex marriage

The Boston Globe has a report.  Said Governor John Lynch,

Today we're standing up for the liberties of same-sex couples by making clear they will receive the same rights, responsibilities, and respect under New Hampshire law.... It is my hope and my belief that New Hampshire will once again come together to embrace tolerance and respect and to stand against discrimination.  Today is a victory for all the people of New Hampshire who, I believe, in our own independent way, want tolerance for all. That's truly the New Hampshire way.

-SS

June Lesbian/Gay Law Notes now available

The June edition of Professor Art Leonard's invaluable Lesbian/Gay Law Notes, including extensive analysis of the California Supreme Court's decision on Prop 8, is now available.

-SS

Wolff, Gallagher debate gay marriage on CNN

University of Pennsylvania law professor Tobias Wolff and Maggie Gallagher of the National Organization for Marriage debated Prop 8, poll numbers about marriage, and the new Olson/Boies federal lawsuit last week on CNN.  Watch the video. 

-SS

White House Pride proclamation is a worthy gesture but lacks specifics on issues

Note: update appended below

The White House today issued a statement by President Obama in honor of Lesbian, Gay, Bisexual, and Transgender Pride Month.  Although it's an official "proclamation" and was issued as a White House news release (and various news outlets and blogs are reporting on it, including the San Francisco Chronicle and USA Today), it does not appear (so far) anywhere on the White House web site. (Keep checking the "statements and releases" page.)  For now, you can read the entire proclamation here.

Obama notes that he is the "first President to appoint openly LGBT candidates to Senate-confirmed positions in the first 100 days of an Administration. These individuals embody the best qualities we seek in public servants, and across my Administration — in both the White House and the Federal agencies — openly LGBT employees are doing their jobs with distinction and professionalism."

The proclamation says the president "continue[s] to support measures to bring the full spectrum of equal rights to LGBT Americans."  But it is silent on any specific actions or leadership the administration plans to take to give effect to its support.

For example, although the statement repeats a longstanding Obama campaign and White House position that there should be "Federal rights for LGBT couples," it remains unclear what exactly this means, how it can be accomplished without repealing DOMA, who exactly would receive federal rights (couples in civil unions or domestic partnerships as well as marriages?), and most importantly, what if anything is being done in the administration to move this forward. 

The statement also says Obama supports "ending the existing 'Don't Ask, Don't Tell' policy," but adds a qualifier -- that it should be done "in a way that strengthens our Armed Forces and our national security."  It's also unclear what this means.

In short, it's commendable that Obama would issue such a proclamation -- it's certainly not something that was done by his predecessor -- but the statement reads like the usual press-release boilerplate, and it fails to go beyond platitudes.

Meanwhile, Secretary of State Hillary Clinton issued her own Pride Month statement.

Update: as of 8:50 p.m. EDT, this release still does not appear on the White House web site, which seems odd for this wired and tech-savvy administration.  Brian Bond, a White House liaison to the gay community, has not yet responded to an email I sent asking for an official link.

Update, Part 2:  The text of the proclamation can be found at http://www.whitehouse.gov/briefing_room/PresidentialActions/ (scroll down to "Proclamations").  The direct link is http://www.whitehouse.gov/the_press_office/Presidential-Proclamation-LGBT-Pride-Month/.  The proclamation is not highlighted on the main "Briefing Room" page of the White House web site, even though another proclamation issued yesterday -- on "Great Outdoors Month" -- is highlighted.

-SS

White House continues to stonewall on DADT

LawDork blogger Chris Geidner critiques the latest line from the White House press room about Don't Ask, Don't Tell. 

-SS

Historian Linda Kerber on the influence of Massachusetts C.J. Marshall on other marriage decisions

University of Iowa historian Linda Kerber, who has previously written in this space about the Iowa marriage decision, has a new piece in the Boston Globe discussing the influence that the Massachusetts Goodridge decision on same sex-marriage -- and specifically its author, Chief Justice Margaret Marshall -- has had on other state supreme courts.  She writes in part:

Marshall's sensitivity to historical change is apparent in her reasoning in the Goodridge decision. In a context in which defenders of the status quo were likely to claim that heterosexual marriage practices have been permanent over time, a defense of same-sex marriage virtually requires engagement with assertions that "history teaches" that understandings of the meaning of marriage are not subject to change.

Drawing in part on the brief contributed by 25 "professors of the History of Marriage, Families and the Law" based in law schools and liberal arts faculties, the decision instructed its readers in the ways in which the practices of marriage in the state of Massachusetts have changed over time, just as the meanings of equality have necessarily changed over time in order, paradoxically, to safeguard the principle of equality.

-SS

Q&A with Lambda's Jon Davidson on the Prop 8 ruling

In a Q&A with the National Law Journal (free registration required), Lambda Legal's Jon Davidson notes the anomalies and unanswered questions left in the wake of the California Supreme Court's decision upholding Proposition 8. 

Davidson notes that the decision seems inconsistent with the court's ruling last year that creating a legal status for gay couples but refusing to call it "marriage" was inherently unequal:

They seemed to say all that's really being taken away is the designation of marriage, but that's inconsistent with how important they said that was in their decision in May. They noted that being relegated to some other institution — which is what they're saying is OK to do here; you can have the same rights but it's not going to be called marriage — sends a message that your relationship is inferior to the majority's, that you are a second class citizen, that we are setting you aside in a way that conveys that you're unequal and, as the court pointed out before, there are real world consequences of that.

The way I think about it is [that] if Prop 8 had instead said [that] only a marriage between white people is valid or recognized in California and all other relationships between other couples are limited to domestic partnerships, would anybody say that's a limited amendment to the Constitution?

Davidson also notes the unanswered questions left by the decision, such as the status of same-sex couples who were legally married outside of California during the time that such marriages were legal inside California.

-SS