Sexual Orientation and the Law Blog

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. 

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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.

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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.

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As expected, California high court upholds Prop 8 but says existing marriages can stand

The court upheld Prop 8 by a 6-1 vote, but was unanimous in deciding to keep intact the marriages of as many as 18,000 gay couples who had exchanged vows before last November's election, reports the Los Angeles Times. The decision does not alter the court's previous holding that sexual orientation discrimination must be analyzed under strict scrutiny. 

The full text of the decision is available at this link.

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State Department will provide benefits to domestic partners

The State Department will offer equal benefits and protections to same-sex and opposite-sex partners of American diplomats, the New York Times is reporting.  The benefits include diplomatic passports, use of medical facilities at overseas posts, medical and other emergency evacuation, transportation between posts, and training in security and languages.  It's unclear whether the policy conflicts with the "Defense of Marriage Act," which State had invoked in the past in refusing to provide such benefits.

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?

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Federal domestic partner benefits legislation is reintroduced in both houses of Congress

The Domestic Partnership Benefits and Obligations Act (DPBO) was introduced yesterday in the Senate and House.  The bill, sponsored by Reps. Tammy Baldwin (D-WI) and Ileana Ros-Lehtinen (R-FL) in the House and Sens. Joe Lieberman (ID-CT) and Susan Collins (R-ME) in the Senate, would provide benefits for same-sex domestic partners of federal civilian employees on the same basis as spousal benefits.  These benefits would include participation in applicable retirement programs, life and health insurance benefits, and family and medical leave.  A Lieberman press release is available here.  Information based on previously introduced versions of the legislation is available from the Human Rights Campaign.

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Marriage opponents find themselves out-organized and underfinanced in New York

Something of a role reversal?  According to the NYT, opponents of marriage equality in New York "say they feel outgunned and underfinanced."  The State Assembly passed a marriage bill 89 to 52 last week, and marriage-equality advocates are pushing for a vote in the closely divided Senate before the end of June.

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May Lesbian/Gay Law Notes available

The May issue of Professor Art Leonard's indispensable publication, Lesbian/Gay Law Notes, is available here.  It features Art's in-depth and authoritative analysis of the Iowa Supreme Court's marriage decision and its implications, as well as coverage of legislative developments in Vermont, Connecticut, New Hampshire, and Maine.

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Same-sex marriage and religious liberty: new opportunities for mutual accommodation and respect

Professor Ira "Chip" Lupu, who blogged in this space last month about same-sex marriage and religious liberty, has a new posting on the subject at Concurring Opinions taking into account recent developments in Vermont, Connecticut, and New York.  Lupu writes that "religious conservatives and secular progressives now have the opportunity to reach political bargains with one another, where both sides agree to a regime of reciprocal accommodation and respect."

Update: today's Washington Post has a piece on the same subject, in which Chip's posting is mentioned.

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An example for Obama? NH governor shifts views, will support marriage equality

New Hampshire Gov. John Lynch said he will sign a bill legalizing same-sex marriage as long as the state legislature adds protections for religious groups that don't want to conduct the ceremonies, the Boston Globe reports. The announcement was a defeat for marriage opponents, who had pinned their hopes on the governor standing in the way of a bill that had been approved through the democratic process such groups claim to support (when it works in their favor).

According to the Globe, Lynch's earlier position had been to support civil unions but oppose marriage.  In this way, his position was the same as President Obama's.  As Obama told Rick Warren during the campaign, "I believe that marriage is the union between a man and a woman. Now, for me as a Christian ... it’s also a sacred union. You know, God’s in the mix." 

And so Obama, not unlike General Peter Pace in his comments on gays in the military, showed that he was unable or unwilling to separate his personal religious views from public policy -- indeed, that he would effectively impose such views by refusing to support equality in civil marriage, a troubling position for a former con law prof.  I suspect Obama actually does know the difference between civil and religious marriage, and so this episode demonstrated early on to me that Obama was more of a traditional politician than his supporters would acknowledge.

Contrast this stance with Gov. Lynch's statement on how he came to support fully equal marriage rights:

I have heard, and I understand, the very real feelings of same-sex couples that a separate system is not an equal system. That a civil law that differentiates between their committed relationships and those of heterosexual couples undermines both their dignity and the legitimacy of their families. 

I have also heard, and I understand, the concerns of our citizens who have equally deep feelings and genuine religious beliefs about marriage. They fear that this legislation would interfere with the ability of religious groups to freely practice their faiths.

Throughout history, our society’s views of civil rights have constantly evolved and expanded. New Hampshire’s great tradition has always been to come down on the side of individual liberties and protections.

That is what I believe we must do today.

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President could end military gay discharges by executive order, new study says

A study released this week by a group of military law experts shows that the president has the legal authority to end gay discharges with a single order, according to the Palm Center at the University of California-Santa Barbara.  According to the Palm Center's press release,

Many have argued that only Congress can lift the ban on service by openly gay troops.  But according to the study, Congressional approval is not needed.  Dr. Aaron Belkin, Director of the Palm Center and a study co-author, said “The administration does not want to move forward on this issue because of conservative opposition from both parties in Congress, and Congress does not want to move forward without a signal from the White House.  This study provides a recipe for breaking through the political deadlock, as well as a roadmap for military leaders once the civilians give the green light.”

The full study can be found here.

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It's dawning on gays that Obama has no interest in their issues

Andrew Sullivan has a powerful commentary on the Atlantic web site noting what many of us suspected even during the campaign: Obama has no serious interest in advancing legal or policy change on gay issues.  Sullivan writes:

I have a sickeningly familiar feeling in my stomach, and the feeling deepens with every interaction with the Obama team on these issues. They want them to go away. They want us to go away.

Here we are, in the summer of 2009, with gay servicemembers still being fired for the fact of their orientation. Here we are, with marriage rights spreading through the country and world and a president who cannot bring himself even to acknowledge these breakthroughs in civil rights, and having no plan in any distant future to do anything about it at a federal level. Here I am, facing a looming deadline to be forced to leave my American husband for good, and relocate abroad because the HIV travel and immigration ban remains in force and I have slowly run out of options (unlike most non-Americans with HIV who have no options at all).

And what is Obama doing about any of these things? What is he even intending at some point to do about these things? So far as I can read the administration, the answer is: nada. We're firing Arab linguists? So sorry. We won't recognize in any way a tiny minority of legally married couples in several states because they're, ugh, gay? We had no idea. There's a ban on HIV-positive tourists and immigrants? Really? Thanks for letting us know. Would you like to join Joe Solmonese and John Berry for cocktails? The inside of the White House is fabulous these days.

Sullivan refers to Tuesday's White House briefing in which press secretary Robert Gibbs brushes aside a series of questions on marriage, civil unions, and Don't Ask, Don't Tell.  You can find that here.

Sullivan's commentary comes on the heels of a similar piece last week in the New York Times, noting that 

Mr. Obama — who has said he opposes same-sex marriage as a Christian but describes himself as a “fierce advocate of equality” for gay men and lesbians — is under pressure to engage on a variety of gay issues that are coming to the fore amid a dizzying pace of social, political, legal and legislative change.

A standard response to such complaints is that gays should have patience while Obama deals with the economy, the Supreme Court, etc.  But not every issue of concern to gays requires a major presidential push and 60 votes in the Senate.  Obama gave a tepid, arguably even counterproductive, response to the Iowa marriage decision.  An expert on DADT has argued that Obama has the executive authority to stem the harmful firing of gays from the military if he wanted to.  And there is no apparent evidence that the administration is doing anything to plan for eventually following through on the promises it made on marriage-like federal benefits for legally recognized same-sex couples.

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Better AIDS treatments and prognosis mean disability insurer may terminate benefits, 7th Circuit rules

Charles Jenkins, a former employee of PricewaterhouseCoopers, was forced to stop working in 1993 due to AIDS, and the following year he began receiving long-term disability benefits under a company insurance plan administered by Connecticut General Life.  In 2004, CGL elected to take another look at the matter and decided, after review of Jenkins' medical condition, that Jenkins was capable of attempting sedenary employment.  CGL cut off his benefits. 

Jenkins sued under ERISA but lost in the district court.  In a decision last week, the 7th Circuit affirmed, holding that CGL's decision met the minimal ERISA requirement that it have some “rational support in the record.”  "That’s not to say the evidence compelled that decision" by CGL, the court noted in an opinion that tried to strike a sympathetic tone, "just that it permitted it." 

The last two paragraphs of the decision are interesting:

Nevertheless, Jenkins suggests that it is impossible to reconcile the initial determination of disability with the later decision that he could attempt full-time sedentary employment.  At best, Jenkins argues, the evidence showed that his condition was stable. If that condition was grave enough to warrant disability in 1994, why wasn’t it sufficient in 2006?

But Jenkins fails to recognize what CGL[] (and the general population, it seems) thought HIV and AIDS meant in the early 1990s. That impression was that HIV (and certainly AIDS) brought rapid death. Thankfully, the prognosis has changed—in large measure due to new drugs—both for Jenkins and countless others.  It was not “downright unreasonable” for CGLIC to shift its position along with that change when the medical evidence supported it.

(Sometimes the 7th Circuit's temporary links to opinions stop working.  If so, case information can be found here.)

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Prop 8 Article in Berkeley Journal of Politics and Policy

Those following the prop 8 litigation may find the following article interesting.  It was recently published in the Berkeley Journal of Politics and  by Courtney Joslin, Acting Professor at the University of California Davis School of Law.

 

Here is the abstract:

In a recent article, Professor Jesse Choper argued that, if held to be valid, Proposition 8 should not be applied retroactively. This conclusion, however, does not fully answer the question posed by the Court, which is: if valid, what effect does Proposition 8 have, if any, on the 18,000 marriages that were entered into before November 5, 2008. In order to answer the retroactivity question posed by the Court, one must consider another inquiry: what does it mean to apply Proposition 8 prospectively only? In this article, I argue that a prospective-only application of Proposition 8 would have no effect on the existing 18,000 marriages. Further, in response to an argument made by the interveners, I also urge that the fact that the putative spouse doctrine may extend some marriage-based rights for some limited period of time to persons who had a good faith belief that they were in a valid marriage does not in any way affect this conclusion.

 

And here is a link to the article:

http://www.bepress.com/cjpp/vol1/iss1/20/

 

As NY legislature takes up marriage today, Rosie's brother is at the center

The New York state legislature begins debating same-sex marriage today, and the New York Times reports that Assemblyman Daniel O'Donnell, older brother of Rosie, "has emerged as a tenacious, ingratiating, playful and sometimes prickly leader of the effort to pass the legislation" and is mounting an intensely personal campaign among his fellow lawmakers. The legislation is expected to easily pass the Assembly, but its fate is less certain in the Senate.

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Handicapping the possibility of a gay Supreme Court justice

The New Republic ponders the plausibility of Obama nominating lesbian law scholars Kathleen Sullivan or Pam Karlan to the Court.  As Richard Just writes:

[N]ominating a lesbian to the court would put conservatives in a politically awkward position. As the gay rights battle has come to center more and more on the specific question of marriage, conservatives have frequently insisted that they are not anti-gay, just opposed to gays getting married. Conservatives are attached to this distinction because they know that, without it, they end up looking like bigots. But if they decide to make an issue of a Supreme Court nominee's sexual orientation, they would effectively be conceding that this distinction was a lie. (After all, could there be any more baldly anti-gay political maneuver than bashing a Supreme Court nominee because of her sexual orientation?) Given that most Americans are no longer comfortable with transparent homophobia (while conservatives still have the majority on same-sex marriage, liberals enjoy majorities on various other gay-rights questions, such as workplace discrimination), it would be a risky move for conservatives to toss aside their cherished distinction between anti-gay sentiment and anti-gay-marriage sentiment. So maybe they would think twice about raising sexual orientation during a confirmation battle. And if they decided to do it anyway, it could become one of those defining moments where the American political center gets a glimpse at the fundamental ugliness undergirding a particular crusade--and turns decisively in the other direction.

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Administrations change, gay Arab linguists still get kicked out of the military

Dan Choi, a West Point graduate and National Guard officer who is fluent in Arabic and who returned recently from Iraq, is about to get discharged from the military because he revealed on television that he was gay.  Aaron Belkin, director of the Palm Center at the University of California Santa Barbara, a think tank that studies gays in the military, argues at Huffington Post that President Obama could do something about this by executive order if he wanted to.

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Gays now forced to choose: marriage or military service?

An interesting report from a local Iowa TV station points up one dimension of the looming federalism clash between the federal government, which continues to maintain generally hostile policies toward gays, and the rights of states to perform and recognize same-sex marriages.  This isn't about the Defense of Marriage Act, though, it's about Don't Ask, Don't Tell. 

As station KITV in Sioux City reports, "if a homosexual member of the military gets married in any one of the now 5 states that have legalized gay marriage, they can be involuntarily removed from their [military] service."  The reason is that "marrying or attempt to marry a person known to be of the same biological sex" constitutes "telling," which in turn can get you discharged under the policy begun under President Clinton and still being continued under President Obama. 

While President Obama supported repealing DADT (as well as DOMA) during his campaign, Defense Secretary Robert Gates recently counseled a go-slow approach.  There is no indication at the moment that repealing either DADT (or DOMA) is a White House priority.

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Gay marriage becomes official in Maine, advances in New Hampshire

Maine's governor signed a bill Wednesday to legalize same-sex marriage, and the New Hampshire legislature passed a marriage-quality bill as well.  If New Hampshire Gov. John Lynch signs the measure or lets it become law without his signature, the state would become the sixth to allow same-sex marriage.

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Lambda attorney discusses Iowa marriage litigation on NPR

Camilla Taylor, lead counsel for Lambda Legal in the case Varnum v. Brien, discussed the litigation today with Terry Gross on Fresh Air.  Listen to the interview here.

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