September 18, 2007
Maryland's Highest Court Permits Same-Sex Marriage Ban
In a case published today (Sept. 18, 2007), the Maryland's highest court (the Court of Appeals of Maryland) ruled that the state's ban on marriage was constitutional and permissible.
The text of the opinion can be found here: Conaway v. Deane (Md. Sept. 18, 2007)
A discussion of the decision will follow shortly.
Hate Crimes Quandary--a gay defendant?
In today's New York Times, the press points out that a defendant currently facing trial for a hate crimes act (killing a gay man based on sexual orientation) claims that he, too, is gay. New York Times, Section B (Sept. 18, 2007).
This raises an interesting question--if the defendant is actually gay, should that matter? In the usual hate crime scenario, the defendant is accused of having hurt or killed a person based specifically on the victim's race, sexual orientation, etc. These types of crimes tend to carry higher penalties. We tend to think that a crime based on these factors is a more heinous type of crime--similar to lynchings and other race-based killings from years past.
However, does it negate "intent" for the hate crime if the person charged falls into the protected class as well? (Note that the NY Hate Crimes Act requires that the person "intentionally selects" the victim based on the protected class. N.Y. Penal Law Section 485.05 (McKinney 2007)).
Is it possible to be a member of a protected class (for hate crimes purposes) and hate that class at the same time? Probably. It seems to me that membership in the protected class should not be an "automatic" nullification of intent. Here's why:
Racial tensions run deep. In Rwanda, for example, members of the same general "race" (African or Rwandan) further broke down their affiliations into sects and killed members of other sects based on race or group-affiliation. Could someone be a member of the gay community, yet target other gay people? Unfortunately, yes.
Is this the type of crime that was meant to be punished by Hate Crimes Legislation? That is a more difficult question, it seems to me...
I welcome comments here as I continue to research and think about this question...
September 16, 2007
Support for H.R. 2015: Employment Non-Discrimination Act
On April 24, 2007, the Employment Non-Discrimination Act of 2007 was proposed to Congress. The new federal legislation is meant to "provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation or gender identity" and would protect certain employees from employment discrimination on those bases. The Employment Non-Discrimination Act of 2007, H.R. 2015 (as of Sept. 16, 2007).
Basically, the Act would provide coverage where Title VII is currently lacking (at least according to many courts), as the text of Title VII provides protection against discrimination on the basis of "sex." Many courts interpret "sex" as different from "gender" and/or "sexual orientation" in order to preclude protection for gay and transgendered employees. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). Although, some judges find that the Supreme Court decision in Price Waterhouse lends credence to the idea that sex discrimination includes discrimination based on gender stereotypes and have held that gay employees are entitled to Title VII protection. See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001). These inconsistent holdings could benefit from clarification and this proposed Act would provide consistent protection for many employees.
The House of Representatives is currently holding hearings on the proposed Act, and the text of the Act could be altered significantly, but the current version of the Act is supported by recent empirical research. Specifically, the Williams Institute recently published a booklet containing the summary from surveys conducted in the "mid-1980s to mid-1990s." The literature review, conducted by M.V. Lee Badgett, Holning Lau, Brad Sears, and Deborah Ho, expressed a consistent trend between and amongst studies with varying methodological and contextual bases: "sexual orientation-based and gender identity discrimination is a common occurrence in many workplaces across the country." The Report can be found on the Williams Institute website.
Many influential Americans are stepped forward to testify in favor of passing the Bill on Sept. 5, including openly gay members of Congress, professors and scholars as well as influential members of the community, such as an openly gay police officer (Boston Globe, Sept. 5, 2007).
It is worthwhile for legal scholars and the LGBT community to monitor the progress of this Act and future posts will update the status of the Act as it progresses through Congress.