Sexual Orientation and the Law Blog

Law prof offers daily reports from Equality Forum

John Culhane, a professor at Widener Law School in Delaware, is the official blogger for Equality Forum. The Philadelphia event runs through Sunday, culminating in an Equality Rally at Independence Hall.  John's detailed daily reporting can be found on his blog, Word in Edgewise.

Equality Forum describes itself as "the largest annual national and international GLBT civil rights forum."  Speakers and panelists this year include Chai Feldblum of Georgetown, Tobias Wolff of Penn, and Nancy Polikoff of American University.  Other events include a colloquium with Bishop Gene Robinson and a dinner honoring San Francisco Mayor Gavin Newsom and the New York Times.

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On 100th day, failing marks for Obama on gay issues?

Politifact.com has compiled approximately 500 (500!) promises that President Obama made during the campaign and is tracking their progress on its "Obameter."  Virtually nothing to report on five issues of concern to gays and lesbians, including several where Obama promised to "place the weight of (his) administration" or "use the bully pulpit": a hate crimes act, employment discrimination legislation, urging "states to treat same-sex couples with full equality in their family and adoption laws," and repealing Don't Ask, Don't Tell and the Defense of Marriage Act.  Politifact reports all these as "no action" or "stalled."

Actually, though, Politifact may not be totally up to date with its facts.  On Wednesday, the House passed gay-inclusive hate crimes legislation that was supported by the White House -- apparently the same bill Obama promised to support during the campaign.

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Activist legislating? Same-sex marriage advances in NH; guv remains mum on veto

It seems like only recently that conservative anti-marriage-equality groups insisted that the issue of same-sex marriage should be decided not by a single person, such a judge, but by democratically elected, representative bodies like state legislatures.  That, of course, was before such bodies started voting in favor of marriage equality in states like Vermont and, now, New Hampshire. 

Now such groups insist that a single person -- a governor -- veto such activist legislating.  They tried and failed with that gambit in Vermont, where the veto was overridden, but are trying again in New Hampshire.

"The New Hampshire Senate voted narrowly on Wednesday to legalize same-sex marriage, paving the way for the state to potentially become the fifth in the nation — and the third this month — to allow gay couples to wed," reports the New York Times.  A similar bill has already passed the state House of Representatives.

Frustrated with the people's elected legislators, the anti-marriage "National Organization for Marriage" promises to intensively lobby Gov. John Lynch to veto the bill.  Lynch has not revealed his intentions. 

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New ACS issue brief examines Prop 8, judicial interpretation of rights, and separation of powers

In a new issue brief distributed by the American Constitution Society, attorneys Gonzalo C. Martinez and Troy M. Yoshino address arguments that California's Proposition 8 is invalid as an improper constitutional revision of the state constitution that could not be accomplished through the initiative process, which only permits constitutional amendments.  The issue brief distills arguments that were presented in the amicus brief filed in the Proposition 8 litigation by the San Francisco La Raza Lawyers Association, for which the authors served as counsel.

The authors agree that Proposition 8 should be struck down if the California Supreme Court finds it to have been an unconstitutional revision, but they focus on presenting an argument in the alternative: 

[T]o the extent the rights to liberty, privacy, due process and equal protection have not themselves been changed, then the pre-existing interpretation of those rights in Marriage Cases must control-and the attempt to mandate a change in the California Supreme Court's interpretation of pre-existing rights violates separation of powers principles. Thus, even if Proposition 8 is construed as a permissible amendment (as opposed to a revision), it would necessarily violate separation of powers principles because it purports to dictate a specific interpretation of certain other-indisputably unchanged-constitutional provisions.

The authors explain that Prop 8's attempt to change the Court's reasoning and interpretation of fundamental rights, "without revising the bases for the Court's reasoning, violates separation of powers principles inherent in the California Constitution and renders Proposition 8 unconstitutional."  They conclude by advising, "[t]his attempt to control judicial interpretive power should also underscore why those who care about separation of powers and the integrity of the three branches of government should be profoundly troubled by Proposition 8, regardless of their position on same-sex marriage."

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Geoffrey Stone on civil unions

U of Chicago law professor Geoffrey Stone writes in today's Chicago Tribune about the civil unions bill pending in the Illinois legislature.  Stone first notes the strong support for such a measure.  Recent polls, he writes, show that Americans favor civil unions by 60 to 34 percent.

There has been a transformation in our thinking on this issue over the past half-century. What would once have been regarded as nothing short of weird now seems perfectly sensible. This is the American story. It is, in part, what makes us great. Over time, we have gradually recognized the common humanity of blacks, women, Hispanics, Asians, Jews, Catholics and gays, all of whom have been the victims of cruel discrimination.

Stone calls legal recognition of civil unions (as opposed to full marriage) "a compromise, but it is a reasonable compromise at this time in our history."  He also neatly dispatches objections by those who have been asserting, with increasing stridency, that equality for gays and lesbians violates their religious liberty: "The problem, though, is that in a society that values the separation of church and state, religious doctrine cannot be the source of our secular law.... It is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them."

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Ethics complaint filed against anti-marriage Iowa lawmaker who urged clerks to break the law

An ethics complaint has been filed against an Iowa legislator alleging that he violated his oath of office by urging county recorders to defy a court ruling legalizing gay marriage.  The complaint also questions whether public money was used to promote an anti-marriage petition circulated by the Iowa Family Policy Center urging county recorders to defy the law by refusing to allow same-sex couples to marry.

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CT legislature approves same-sex marriage bill

Connecticut’s legislature voted Wednesday night to update the state’s marriage law to conform with October’s state supreme court ruling that same-sex couples have the right to marry.  The bill would turn all previous civil unions into marriages starting in October 2010.  It also contained protections for religious organizations.  The ABA Journal has a report and more links.

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The religious-conservative case against federal hate crimes legislation

John Whitehead of the religious-conservative group The Rutherford Institute argues against federal hate crimes legislation currently pending in Congress.  Whitehead argues that:

• hate crime laws favor a particular class of individuals for protection and seek to punish certain prejudices;
• such laws have a chilling effect on free speech;
• hate crime laws create a new class of investigative techniques by government agents and the police; and
• hate crime laws are redundant, because there are "already a host of stiff penalties on the books for those who commit acts of unspeakable horror, whether the crimes are based on an individual's race, religion, national origin or sexual orientation."

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Tenth Circuit reverses immigration judge's gay stereotyping

Tarik Razkane remained in the United States beyond the period authorized by his non-immigrant visa.  After the government sought to remove him, Razkane argued before an immigration judge that if he were returned to his native Morocco, he would be persecuted because of his homosexuality. 

That's when things got interesting.  According to an opinion issued Tuesday by the 10th Circuit US Court of Appeals, at Razkane's hearing,

[t]he government asked multiple questions involving the assumption that certain individuals appear “gay.” Specifically, at one point, the government’s lawyer asked Razkane if Moroccan people would identify him as gay by the way he talked, dressed, and moved. Razkane answered in the affirmative. The government lawyer went on to ask Razkane’s country conditions expert his opinion as to what would happen to someone who “looked . . . gay” while walking the streets in Morocco, to which the expert responded “Ma’am, I’m sorry, I can’t help you with that. I just don’t know what it means to look like a gay.” In his oral ruling, the IJ found Razkane’s “appearance does not have anything about it that would designate [him] as being gay. [He] does not dress in an effeminate manner or affect any effeminate mannerisms.”

In its decision reversing the Board of Immigration Appeals, the 10th Circuit chastised the IJ's reasoning.

The IJ’s homosexual stereotyping ... precludes meaningful review in this case. The IJ’s reliance on his own views of the appearance, dress, and affect of a homosexual led to his conclusion that Razkane would not be identified as a homosexual. From that conclusion, the IJ determined Razkane had not made a showing it was more likely than not that he would face persecution in Morocco. This analysis elevated stereotypical assumptions to evidence upon which factual inferences were drawn and legal conclusions made. To condone this style of judging, unhinged from the prerequisite of substantial evidence, would inevitably lead to unpredictable, inconsistent, and unreviewable results. The fair adjudication of a claim for restriction on removal is dependent on a system grounded in the requirement of substantial evidence and free from vagaries flowing from notions of the assigned IJ. Such stereotyping would not be tolerated in other contexts, such as race or religion.

The full opinion can be found here.

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Univ. of Arkansas at Little Rock hosts "Transgender People and the Law" on Mon., April 27, 2009

"Transgender People and The Law," Monday, April 27, 2009, from 12:00pm to 1:30pm in Room 323.

Co-sponsored by Bowen Lambda and the ACLU of Arkansas Student Chapter , this program seeks to promote an understanding of what it means to be transgender and of the challenges transgender people face. Program includes the following speakers and topics:

Olivia Powers' personal story as an individual who transitioned from male to female; a survey by Mike Lauro of how courts treat transgender litigants; Prof. Terri Beiner's analysis of transgender sexual harassment and employment discrimination; and perspectives on mental health by Margaret Morgan. We will suggest ways to make laws and policies more fair and how society can be more inclusive of transgender people.

This event is free and open to the public.

Individual boxed lunches will be catered by Milford Track. (see below, RSVP required if you want a free lunch)

Please read the following important notes:

(1) Lunch RSVP
Please RSVP to mvlauro@ualr.edu if you would like a boxed lunch AND specify your sandwich choice: Chicken; Ham; Turkey; Roast Beef; Combo Meat; Veggie; Garden; Grilled Cheese.

Lunch includes sandwich, chips, pasta salad, cookie, and bottled water. Your name will be on the boxed lunch and available before and during the program.

(2) Awards Presentation
The event will start with recognition of the 2009-2010 officers for both groups and the presentation of Bowen Lambda's 2009 Pride Awards.

(3) Join Facebook groups
Bowen Lambda,
ACLU of Arkansas

(4) Class Capture
This event will be recorded by the class capture system and a link to the recording will be emailed out after it is published.

Federal gay rights legislation: time for a new, more sweeping approach?

Tired of what they see as a too-timid incremental approach by Congress and leading LGBT rights groups, two gay philanthropists are advocating an omnibus federal LGBT rights bill.  According to the Washington Blade,

[T]he proposed omnibus bill goes much further than [the Employment Non-Discrimination Act] by adding sexual orientation and gender identity and protection provisions to more categories in the 1964 Civil Rights Act and other civil rights laws that ENDA’s sponsors in Congress considered too risky to include in ENDA. Among them are protections from discrimination in housing and public accommodations, such as hotels and restaurants, and in the ability to obtain credit.
. . .
The draft Equality & Religious Freedom Act released last week on the eQualityGiving.org web site also includes: language repealing the Defense of Marriage Act; a provision repealing “Don’t Ask, Don’t Tell;” a provision incorporating the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act; and a provision incorporating the Uniting American Families Act, which would give the same immigration rights to foreign-born same-sex domestic partners of American citizens that currently are given to heterosexual foreigners married to Americans.

The "Blueprint for LGBT Equality" is available here.

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Transgenders born in CA may change sex on birth certificates, state appellate court rules

Transgender people born in California will be able to change the specified sex on their birth certificate, even if they live outside the state, a state appellate court ruled last week.  The Advocate reports.

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Legal lessons from the Vermont marriage-equality vote

At Huffington Post, Yale law student Aaron Zelinsky suggests three lessons from the Vermont legislature's vote in favor of marriage equality for same-sex couples: federalism can be progressive; legislatures, and not just courts, also enforce rights; and a single vote can make a difference.

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UCLA's Williams Institute offers fellowship in sexual orientation public policy

The Williams Institute will offer a Public Policy Research Fellowship to a recent graduate school graduate (including law school) who is interested in public policy research and writing on sexual orientation issues.  The Williams Institute is a national think tank at UCLA School of Law dedicated to advancing critical thought in the field of sexual orientation law and public policy.  More information is available at http://www.law.ucla.edu/WilliamsInstitute/Fellowships/Public%20Policy%20Research%20Fellowship%202009.pdf.

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Frank Rich on the sweeping changes in anti-gay politics

The governor of Utah endorses civil unions.  Rick Warren disavows anti-marriage activism.  Glenn Beck celebrates the Vermont marriage vote.  NYT columnist Frank Rich assesses the current state of anti-gay politics and finds that "homophobic activism is ever more depopulated and isolated as well as brain-dead."

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After Iowa and other recent victories, Lambda takes a victory lap

"As civil rights lawyers, we felt the deep thrill of seeing our constitutional analysis accepted and applied, and vindication of our belief in the capacity of courts to rule wisely and to do justice," writes Lambda Legal executive director Kevin Cathcart on the ACSBlog.

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To safeguard parental rights under federal and state laws that won't recognize same-sex marriage, judge grants adoption to child's genetic mother

A New York judge has granted an adoption petition filed on behalf of a woman whose donated egg was fertilized and then implanted in her same-sex partner.  The New York Law Journal reports that although the couple's Dutch marriage is recognized by New York and the donor's genetic relationship to the 15-month-old boy is "unquestioned," the donor filed for adoption in order to safeguard her parental rights under federal law and in the states that do not recognize the same-sex marriage. The judge wrote that although adoption should be unnecessary because the child "was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States."

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ABA releases new national AIDS strategy

The new document by the ABA's AIDS Coordinating Committee is intended to "shine a spotlight on some of the legal issues -- and the laws to address them -- that remain unsettled as we approach the end of the third decade of HIV/AIDS in America."  The document is available here.

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NY governor to introduce marriage-equality bill

The New York Times reports that it remains unclear whether the bill currently has enough support to pass in the state legislature.

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Religious liberty and gay equality: a proposed compromise

The following commentary is by Professor Ira "Chip" Lupu of George Washington University Law School. It is adapted from a recent posting by Professor Lupu to an e-mail discussion list on religion-law issues.

In recent years, religious conservatives have been using religious-liberty arguments as a sword (a club might be a better word) to buttress political campaigns against same-sex marriage.  An article in the Harvard Journal of Law and Public Policy by Roger Severino of the Becket Fund for Religious Liberty fits this model. The article warned, among other things, that “[t]he movement for gay marriage is on a collision course with religious liberty” and would produce “both government compulsion of religious institutions to provide financial or other support for same-sex married couples and government withdrawal of public benefits from those institutions that oppose same-sex marriage.”  These sorts of arguments have been intended to make their way into the political debate about same-sex marriage in California and elsewhere, and they have had some effect.

Now that the winds have started blowing the other way (backlash to Prop 8, Iowa court ruling, Vermont legislation, legal results in cases involving commercial enterprises and public accommodations), religious conservatives apparently want to use religious liberty as a shield.  With respect to legitimate claims of right (sermons by pastors, faith community selectivity about who may get the sacrament of marriage), virtually no one wants to break that shield.  But religious conservatives also want discretionary political accommodations, such as exemptions from laws governing adoption agencies, employment practices by government contractors, and conditions of access to publicly subsidized benefits. 

My question is this: are the proponents of these exemptions really interested in "live and let live"?   Or is their position really "let us live and we'll keep fighting against the right of others to live in equal dignity?”  If it is the latter, then this is one-way toleration, and it deserves no respect.  If it is the former, then we need to see some evidence of good faith. 

So how about this compromise as a start: in exchange for carefully crafted exemptions for religious organizations and communities (not landlords and doctors and photographers) to ensure that equal-marriage and anti-discrimination measures do not impair legitimate claims of religious liberty, those communities promise to support repeal of the federal “Defense of Marriage Act,” repeal of state DOMA's, and non-interference by Congress with same-sex marriage policy in DC, and they promise the end of opposition to the extension of same-sex marriage (i.e., no more Prop 8's). 

Is there a political deal that can be struck here? Or is the real agenda of religious conservatives simply a one-way demand for respect?