Sexual Orientation and the Law Blog

Court orders reinstatement of teacher who says he was dismissed for LGBT advocacy

A judge ruled last week that the Oklahoma City teacher, Joe Quigley, had not neglected his duties as school officials alleged.

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Out-of-state conservative group buying influence to overturn marriage equality in Iowa

The so-called "National Organization for Marriage," which opposes marriage equality, has spent $86,000 to influence the outcome of an Iowa legislative race representing three rural counties.  The special election is set to take place this Tuesday.  Their candidate supports overturning the Iowa Supreme Court's unanimous decision earlier this year on same-sex marriage.

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DADT: more jawboning and professed good intentions, no actual change

The Pentagon "has no particular deadline" for meeting President Obama's request for ways to "relax the implementation of 'don’t ask, don’t tell,'" reports The Advocate.

Asked last week whether the administration had received any updates from [Defense Secretary Robert] Gates on that review, White House press secretary Robert Gibbs said he would check on it. The White House has not provided further information on the inquiry.

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With Kennedy's death, gay rights lose an important champion at the federal level

Activists tell CNN that Kennedy's death marks the passing of longtime and compleat advocate for LGBT equality.

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New web resource on AIDS law

AIDSLEX (the AIDS and Law Exchange) says it

gives concrete meaning to a “rights-based approach to HIV/AIDS”. This web portal is a tool for activists, community organizations, researchers, policy-makers, journalists, health workers and anyone who seeks quick and easy access to a wide range of resources about HIV, human rights and the law. It helps people around the world communicate and share information, materials and strategies, with the ultimate goal of contributing to a global effort to protect and promote the human rights of people living with or vulnerable to HIV and AIDS.

The site is sponsored by several UN and government agencies and private foundations.

Although the site isn't schedule to go live until next month, a "sneak peek" is available at http://aidslex.stage.v51.biz/English/Home-Page/.

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State civil rights commission unanimously opposes overturning Iowa marriage ruling

The bipartisan commission voted unanimously to formally support the Iowa Supreme Court's decision allowing gay marriage and to formally oppose any constitutional amendment that would overturn the decision, reports the Des Moines Register.

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As more states offer same-sex marriage, some opponents demur on the consequences

With same-sex marriage no longer a theoretical boogeyman but rather a reality in six states, Steve Chapman of the Chicago Tribune decided to check in with several high-profile conservatives to see how they think the experiment is going.

Opponents of same-sex marriage reject it on religious and moral grounds but also on practical ones. If we let homosexuals marry, they believe, a parade of horribles will follow -- the weakening of marriage as an institution, children at increased risk of broken homes, the eventual legalization of polygamy and who knows what all.

. . .

But with the experiment looming, some opponents seem to be doubting their own convictions. I contacted three serious conservative thinkers who have written extensively about the dangers of allowing gay marriage and asked them to make simple, concrete predictions about measurable social indicators -- marriage rates, divorce, out-of-wedlock births, child poverty, you name it.

You would think they would react like Albert Pujols when presented with a hanging curveball. Yet none was prepared to forecast what would happen in same-sex marriage states versus other states.

Professional anti-marriage activist Maggie Gallagher, who declined to speak with Chapman on the subject, instead chooses the more comfortable forum of the National Review Online to offer "five preliminary predictions about the short-term effects of SSM," for which she offers no data, empirical support, or further explanation.  Indeed, Gallagher appears to concede that such speculation is pointless, saying she "would welcome a serious project by serious people, across ideological lines, to try to design a serious study."

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Article: "Further Thoughts on Proposition 8 and Retroactivity: A Response to Choper"

In an article in the California Journal of Politics and Policy, Professor Courtney Joslin of UC-Davis School of Law responds to an earlier article by Jesse Choper titled Should Proposition 8 Be Held to be Retroactive?

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Ted Olson's road to advocacy for same-sex marriage

The NYT has a nice piece on Ted Olson, the conservative stalwart appellate attorney who's helping to drive a federal challenge to California's Prop 8.

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In California federal lawsuit, Obama shifts tone on DOMA while still defending it

President Obama said Monday he still wants to scrap DOMA and that his administration's stance in a California court case is not about defending traditional marriage but instead about defending an existing law based on its constitutionality.  According to the AP,

Justice Department lawyers filed new papers Monday seeking to throw out a lawsuit brought by a gay couple challenging the 1996 Defense of Marriage Act, or DOMA. Gay rights groups say that by doing so, the administration is failing to follow through on campaign promises made by Obama last year to work to repeal the law.

Department lawyers are defending the law 'as it traditionally does when acts of Congress are challenged,' Obama said in a statement.
...

The government says in its court filing that it will defend the statute in this case because a reasonable argument can be made that the law is constitutional — a standard practice of government lawyers.

The reply brief filed Monday summarizes the administration's position this way:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here. . . .

The case is Smelt v. U.S. NO. SACV09-00286 DOC (MLGx) (C.D. Cal). The full reply brief is available here.

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In the face of Obama's complacency, gays must commit to new strategies and tactics, The Advocate urges

An excellent political analysis in The Advocate examines President Obama's disappointing record on gay issues and ponders how, going forward in the new political and legal climate, advocates for LGBT equality must adapt, respond, and continue fighting. While they cannot depend on Obama, the piece suggests, they can still be inspired by him.

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Analyzing the legal strategies in the Olson/Boies Prop 8 lawsuit

As previously reported, the federal judge in the high-profile challenge to California's Proposition 8 filed by attorneys Ted Olson and David Boies has ordered the parties to file new, more detailed statements of their legal positions.  A helpful article in the San Francisco Chronicle analyzes the legal positions that have been asserted on both sides.  Much of the dispute comes down to whether the case can be disposed of on summary judgment, as the conservative religious defendants in the case urge, or whether a trial is necessary to determine such issues as the suitability of gays and lesbians as parents, comparisons of marriage and domestic partnership, the extent of discrimination based on sexual orientation, and whether Prop 8 was primarily motivated by anti-gay religious bigotry.

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New, larger role for women in combat also undermines military myths about gays, activists say

Women are more frequently engaged in combat roles in Iraq and Afghanistan and the military has adapted out of necessity, reports the New York Times.  The story also notes:

The successful experiences of military women in Iraq and Afghanistan are being used to bolster the efforts of groups who favor letting gay soldiers serve openly. Those opposed to such change say that permitting service members to state their sexual orientation would disrupt the tight cohesion of a unit and lead to harassment and sexual liaisons — arguments also used against allowing women to serve alongside men. But women in Iraq and Afghanistan have debunked many of those fears.

“They made it work with women, which is more complicated in some ways, with sex-segregated facilities and new physical training standards,” said David Stacy, a lobbyist with the Human Rights Campaign, which works for gay equality. “If the military could make that work with good discipline and order, certainly integrating open service of gay and lesbians is within their capability.”

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Judge orders clearer filings in Olson/Boies Prop 8 challenge

The federal judge in the high-profile challenge to Prop 8 filed by attorneys Ted Olson and David Boies says he is dissatisfied with all of the court filings meant to lay out the legal issues and evidence in the case, and ordered the parties to submit new filings by August 17.

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California marriage-equality group targets 2012 for effort to repeal Prop 8

The San Jose Mercury-News reports that "Equality California, the largest fundraiser in last year's unsuccessful campaign against Proposition 8, announced Wednesday that it would work toward a ballot measure to legalize same-sex marriage in 2012 rather than next year. The group cited extensive polling and outreach indicating 2012 was the date a campaign to legalize gay marriage in the Golden State would stand a reasonable chance of success."

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New marriage suit filed in Oklahoma

The Advocate.com reports that "[t]wo lesbian couples who have spent years embroiled in the Oklahoma legal system over marriage rights filed a new complaint to challenge federal and state laws banning same-sex marriage."

The couples initially filed suit in 2004, after Oklahoma passed a constitutional ban on same-sex marriage. They also sued the U.S. government for the Defense of Marriage Act, which bars federal recognition of same-sex marriages and permits states to ignore legal same-sex marriages performed outside their jurisdiction. The 2004 suit was dismissed by a three-judge panel of the 10th U.S. circuit court of appeals in Denver, who said they did not have standing to sue, according to the Associated Press.

In the new suit, aspects of the complaint are changed, including which government officials are named defendants and wording that reflects Barton and Phillips's 2008 wedding in California.

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A skeptical take on hate-crimes laws, this time from the left

The independent-media site Alternet argues that "there is little proof that the tougher sentencing that comes with hate crimes legislation prevent violent crimes against minority groups. Meanwhile, the U.S. prison system continues to swallow up more and more Americans at a record pace."

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Palm Center cites more evidence that Obama could end gay discharges if he wanted to

From the Palm Center, a think tank on gays in the military issues at the University of California Santa Barbara:

President Barack Obama’s use of signing statements—a presidential authorization to ignore portions of Congressional law—is being criticized by scholars who study gay rights for directly contradicting his defense of ongoing gay troop discharges. The President has refused to intervene to stop the firing of gay troops, citing the rationale that the White House should not be “simply ignoring a Congressional law.” Last month the President told Anderson Cooper of CNN that “it’s not appropriate for the executive branch simply to say, ‘we will not enforce a law.’”

But yesterday’s New York Times reports that the President has used signing statements five times to challenge nineteen provisions of federal statute, including a law restricting the use of U.S. troops in United Nations commands. According to Dr. Aaron Belkin, Director of the Palm Center at the University of California, Santa Barbara, the President’s use of signing statements to ignore provisions of standing law is a far more flagrant assertion of executive authority than would be an executive order halting gay discharges.  “Contrary to what some have stated,” said Belkin, “using executive power to suspend the gay ban is not questionable or even controversial among major legal scholars.  It is a power explicitly granted to the President by Congress under the ‘stop-loss’ statute.” By contrast, Belkin said, signing statements are a controversial use of executive authority that many, such as the American Bar Association, have called unconstitutional for usurping Congressional authority.

Diane Mazur, Professor of Law at the University of Florida Levin College of Law, agreed.  “There’s a total inconsistency to the logic here,” said Mazur, who is an affiliated scholar at the Palm Center. “How can you exercise questionable executive authority with a signing statement while declaring that using a Congressionally-granted power to let gays serve is illegal?”

The idea of ending the gay ban by executive order first gained momentum after the release in May of a Palm Center study showing that the president has the authority to suspend “don’t ask, don’t tell” under a Congressional “stop-loss” statute (10 U.S.C. § 12305). Since then, gay groups and politicos have debated the political merits of taking such action, but no one has shown the step would be illegal.

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Do anti-hate crime laws expand double jeopardy?

The Cato Institute's David Rittgers explains an objection to the new federal hate crimes law passed by Congress (hat tip to the Volokh Conspiracy):

States and the federal government are considered separate sovereigns. If someone has broken both state and federal laws, he can have a day in court in both systems. . . . A trial by a state does not rule out federal prosecution for the same crime, and this does threaten to thwart the Fifth Amendment’s demand that no person suffer double jeopardy. In practice, however, this hasn’t happened too often; until now, limited federal jurisdiction meant that Uncle Sam usually didn’t have the ability to try or retry a state defendant.

That’s what makes the new hate-crime law so remarkable. Its defining feature is not that it allows federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim. What’s significant is that it greatly expands the federal government’s jurisdiction to prosecute cases that properly belong in a state court.

In legal terms, this law achieves its aims through federal authority over interstate commerce. If someone assaults you by throwing a cell phone at you, what Congress has done is enabled the prosecution of the thrower as a function of the fact that the cell phone was made in Japan, and therefore must have crossed state lines. To non-lawyers, that surely sounds absurd — which is precisely why this law’s drastic overreach is so stark. This is a sea change in the power of the government to reach into a state and define violence between two people as a federal matter, one traditionally handled by state laws and state prosecutors.

An equally striking feature of the law is that the federal power to prosecute is not dissipated even if the defendant is found guilty by the state. It explicitly says, in fact, that federal charges should be pursued if the state verdict “left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.”

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New book: "When Gay People Get Married"

Adapted from a news release by the Williams Institute at UCLA Law School:

In a new book from NYU Press, When Gay People Get Married – What Happens When Societies Legalize Same-Sex Marriage, scholar M.V. Lee Badgett, research director of the Williams Institute at UCLA Law School, travels to the Netherlands, where same-sex marriage has been legal since 2001. Through interviews with married gay couples, we find out how marriage has affected their lives.  We learn about the often surprising changes to their relationships, the reactions of their families, and work colleagues.

Moreover, Badgett is interested in the ways that the institution itself has been altered for the larger society. How has the concept of marriage changed? When Gay People Get Married gives readers a primer on the current state of the same-sex marriage debate, and a new way of framing the issue that provides valuable new insights into the political, social, and personal stakes involved.

The experiences of other countries and pioneering American states like Massachusetts and California serve as a crystal ball as we grapple with this polarizing issue in the American context.  The evidence shows both that marriage changes gay people more than gay people change marriage.  In the end, Badgett compellingly shows that allowing gay couples to marry does not destroy the institution of marriage and that many gay couples do benefit, in expected as well as surprising ways, from the legal, social, and political rights that the institution offers.

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