Sexual Orientation and the Law Blog

December Lesbian/Gay Law Notes now available

The December issue of Professor Art Leonard's indispensable Lesbian/Gay Law Notes is available here.  In the lead story, Art analyzes the decision of the New York Court of Appeals, the state's highest court, to unanimously reject two attempts by the Alliance Defense Fund, an antigay litigation group, to obtain invalidation of actions by government officials authorizing recognition of out-of-state same sex marriages.

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Argentina's first gay marriage: what does it portend for the rest of Latin America?

The UK's Observer reports that when two men marry this Tuesday in Buenos Aires, supporters and opponents of gay marriage across Latin America will be watching closely:

Not surprisingly, the marriage is already being hailed by equality activists as a significant triumph against the odds in a traditionally macho society. Argentina – and Latin America in general – is not known for a tolerance of sexual diversity, and violence against gays is an everyday occurrence.

"This marriage is bigger than José María and I," [Alex] Freyre told the Observer. "It is a victory for all who face prejudice and discrimination across Latin America and the Caribbean. It is proof that at last the grip of the Catholic church is slipping across Latin America, the system that has kept gay communities silent and fearful is crumbling. What is happening on Tuesday is a strike against those attitudes that have repressed sexual rights across this continent for too long."

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Proposed Republican litmus test: support for DOMA is one of 10 most important policy priorities

Politico reports that the Republican National Committee is considering a list of 10 “key public policy positions for the 2010 election cycle that . . . some of the more orthodox conservative members of the committee believe candidates should adhere to in order to receive the RNC’s support."  Among them is continued support for the "Defense of Marriage" Act. 

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Thanks to federal discrimination under DOMA, same-sex couples pay millions more in estate tax

Same-sex couples who are subject to the estate tax are assessed an average of $3.3 million more in taxes upon the death of a spouse than similarly-situated different-sexed married couples, according to a new study by the Williams Institute at UCLA Law School. 

Because the federal "Defense of Marriage" Act prohibits the federal government from recognizing any same-sex marriages, even those lawfully performed by states such as Massachusetts and Iowa, lesbians and gay men are disadvantaged in their ability to pass on their wealth to their partners and children after their death, the study observes.

The Williams Institute press release is available here, and the full study is available here.

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Balancing marriage equality and religious freedom in the nation's capital

Anticipating a vote soon in the Washington, DC, city council, a NYT editorial addresses the balance between marriage equality for same-sex couples and the concerns of the Catholic Church:

The pending bill appropriately exempts religious institutions from having to marry same-sex couples, promote same-sex marriage or rent church property to them for receptions or other affairs. But this bill rightly requires that employers providing spousal benefits to employees extend those same benefits to same-sex partners who marry.

This law, which deals in the civic institution of marriage and not religious doctrine, would cover Catholic Charities, an organization that receives public funds and that does extraordinary work feeding and housing the poor in Washington and elsewhere in the country.

The editorial goes on to criticize the archbishop of Washington for seeking additional special concessions for Catholic Charities and implicitly threatening to end "the decades-old partnership between the church and the city in the mission of caring for the needy."  In a column in Sunday's Washington Post, the archbishop places the blame for the problem on the city itself: "Since Catholic Charities cannot comply with city mandates to recognize and promote same-sex marriages, the city would withhold contracts and licenses."

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Fact checking a pastor's lies as marriage fight heats up in DC

In every state or community where same-sex marriage is on a legislative agenda, conservative religious leaders seek to poison the dialogue by spreading false information and appealing to ignorance, racial politics, and anti-gay resentment.  It's happening now in Washington, DC. Jeff Krehely of the Center for American Progress debunks the campaign of disinformation being led by "Bishop" Harry Jackson, pastor of a church that is not actually located in DC, against a measure that would extend marriage equality in the nation's capital.

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Has Texas outlawed all marriages?

This is apparently what you get when you combine sloppy lawyering with the political machinations of homophobes  Politics Daily reports that "[i]n approving an amendment to its constitution prohibiting gay marriage four years ago, Texas may have inadvertently outlawed all marriages in the state," and that the problem has become an issue in the state's race for attorney general.  

The problem is that in 2005, voters added the following language to the state's constitution:  "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."  Politics Daily continues:

Linguist Mark Lieberman, writing on the Language Log four years ago, opined that from a linguistic standpoint the law did indeed seem to outlaw all marriages, noting that "whatever marriage may be, it surely is 'a legal status identical or similar to' itself."

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At hearing for EEOC post, Chai Feldblum disavows statement on alternative families

In 2006, Chai Feldblum, a professor at Georgetown Law Center and current Obama nominee to the EEOC, signed a statement titled "Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families and Relationships."  The statement was signed by prominent academics and activists sympathetic to the idea of de-emphasizing marriage as a goal for gays and lesbians and "mov[ing] beyond the narrow confines of marriage politics as they exist in the United States today. We seek access to a flexible set of economic benefits and options regardless of sexual orientation, race, gender/gender identity, class, or citizenship status."  The statement asserts, in part:

To have our government define as “legitimate families” only those households with couples in conjugal relationships does a tremendous disservice to the many other ways in which people actually construct their families, kinship networks, households, and relationships. For example, who among us seriously will argue that the following kinds of households are less socially, economically, and spiritually worthy?

• Senior citizens living together, serving as each other’s caregivers, partners, and/or constructed families
• Adult children living with and caring for their parents
• Grandparents and other family members raising their children’s (and/or a relative’s) children
• Committed, loving households in which there is more than one conjugal partner
• Blended families
• Single parent households
• Extended families (especially in particular immigrant populations) living under one roof, whose members care for one another
• Queer couples who decide to jointly create and raise a child with another queer person or couple, in two households
• Close friends and siblings who live together in long-term, committed, non-conjugal relationships, serving as each other’s primary support and caregivers
• Care-giving and partnership relationships that have been developed to provide support systems to those living with HIV/AIDS

Feldblum's views on family #4 -- "[c]ommitted, loving households in which there is more than one conjugal partner" -- were a subject of interest at her Senate hearing Thursday for confirmation to the EEOC.  As Lawdork blogger Chris Geidner reports, Feldblum sought to reassure the Senate committee, “I do not support polygamy.”

Indeed, on the eve of the hearing, Feldblum, who is lesbian and the partner of Professor Nan Hunter, asked that her name be removed from the statement, reports Politico.com. Feldblum wrote earlier this month to the statement organizers:

I am writing to ask that you remove my name as a signatory to the Beyond Same-Sex Marriage statement. I signed this document because it supports societal recognition of relationships between LGBT couples. But the statement was overly broad and there are parts of it with which I do not agree. Because the text of the statement does not reflect my views, I must ask you to remove my name.

As of this writing, her name is still there.

If the statement did not reflect her views, why did Professor Feldblum sign it in the first place?  According to blogger Geidner,

Feldblum stated that she had been asked to sign on to the petition by “another academic from Columbia.”  She said, “I agreed with the general thrust of the statement,” and that her work at the time was very focused on efforts to “support the range of caregiving relationships.”  It was for that reason, she said, that she signed on in support of the petition.

She concluded, though, “However, the statement goes beyond what I would have said.  That’s why it was a mistake to sign it and why I asked for my name to be removed.”

So, setting aside the question of whether signing was an expression of personal principle, a decision meant to advance a professional scholarly agenda, a casual favor to a colleague, or something else, why did she wait three years -- specifically, until the eve of her confirmation to a government post -- to ask that her name be removed? 

The answer seems obvious.  Professor Feldblum correctly anticipated that, whatever her activist friends and academic colleagues may wish for, the United Senate Senate is one place that is decidedly not ready to "move beyond the narrow confines of marriage politics as they exist in the United States today," and that the views of the Family Research Council carry more weight on Capitol Hill than those of queer studies professors.  Such are the compromises that even prominent, well-established academics are forced to make when they seek a more direct role in politics and policy.

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NY court rejects challenge to recognition of out-of-state marriages

Our colleague Ruthann Robson at Con Law Prof Blog reports that

New York's highest court today (download here) affirmed the rejection of a taxpayer challenger to directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. 

Read more.

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Buenos Aires officials won't appeal marriage equality ruling

The government of Argentina's capital will not appeal a court decision this week that legalizes same-sex marriage, CNN reports. The court struck down two articles in the city's civil code that say only people of different sexes can get married. The decision applies only to Buenos Aires.

This report has more on same-sex relationship rights on Argentina and elsewhere in Latin America.

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Compassion has its limits: Catholic Church blackmails DC over social services if it approves same-sex marriage

The Catholic Archdiocese of Washington has threatened to terminate the social service programs it runs for the Washington, DC, if the city doesn't change a proposed same-sex marriage law, a threat that could affect tens of thousands of people the church helps with adoption, homelessness and health care, reports the Washington Post:

Under the bill, headed for a D.C. Council vote next month, religious organizations would not be required to perform or make space available for same-sex weddings. But they would have to obey city laws prohibiting discrimination against gay men and lesbians.

Fearful that they could be forced, among other things, to extend employee benefits to same-sex married couples, church officials said they would have no choice but to abandon their contracts with the city.

More from 365Gay and blogger John Culhane.

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November Lesbian/Gay Law Notes is available

The November edition of Professor Art Leonard's Lesbian/Gay Law Notes is available here.  The lead story is the passage of gay-inclusive federal hate crimes legislation.

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AMA opposes DADT, expresses concern about bans on gay marriage

The American Medical Association yesterday voted to oppose the military’s “don’t ask, don’t tell” policy, and voiced the concern that prohibitions on gay marriage contribute to health disparities. 

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Symposium on law and gender issues for American Indians and immigrants

The Wisconsin Journal of Law, Gender & Society is seeking original scholarship, from both scholars and practitioners that addresses the intersections of law and gender in the daily lives of two populations, each of which occupies a unique space in American law: American Indians and Immigrants.

Interested parties should send an abstract to WJLGS.Symposium@gmail.com by November 15, 2009. Those selected for the Symposium will be notified in early January 2010. The Journal’s Symposium issue will be published in Winter 2010.

Questions can be addressed to Symposium Editor Dan Lewerenz, danlewerenz@gmail.com, or Deputy Symposium Editor Kate Frigo, kate.frigo@gmail.com.

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House-passed health reform bill would bring fairness to taxation of same-sex health benefits

A little-noticed provision of the health care reform bill passed Saturday by the House would change the tax treatment of employer-provided health benefits for same-sex spouses and domestic partners, reports the New York Times:

Supporters of gay rights have long been trying to change the tax treatment of health benefits provided by employers to the domestic partners of their employees. In effect, such benefits are now treated as taxable income for the employee, and the employer may owe payroll taxes on their fair-market value.

Under the bill, such benefits would be tax-free, just like health benefits provided to the family of an employee married to a person of the opposite sex.

Representative Jim McDermott, Democrat of Washington, who proposed the change, said it would “correct a longstanding injustice, end a blatant inequity in the tax code and help make health care coverage more affordable for more Americans.”

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Marriage equality movement ponders future after Maine setback

On the heels of a 53-47 percent vote in Maine to repeal same-sex marriage, you can find a roundup of news, analysis, and reaction here.

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Privacy-in-petitioning debate overshadows Washington state vote on domestic partnership

The New York Times reports:

On Tuesday, voters in Washington State will decide whether to extend to registered domestic partners the same rights married couples have, short of marriage. But the campaign over the referendum, placed on the ballot by opponents of same-sex marriage, has been overshadowed by one issue: whether the individual names of the petitioners should be made public, and ultimately, circulated on the Web.

Story quotes UCLA law professor Eugene Volokh, among others.

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Prof. Sherry Colb: hate crimes are not the same as thought crimes

FindLaw columnist and Cornell law professor Sherry Colb takes strong issue with a commonly-heard objection to the proposed bill, which President Obama signed this week, that would expand the scope of the federal hate crimes law to encompass hatred based upon gender, sexual orientation, gender identity, or disability. The objection contends that to ban a hate crime is to ban a "thought crime," when we all ought to have freedom of thought and speech. Colb responds that, to the contrary, to look to a perpetrator's motivation for committing a proven crime is a far cry from criminalizing thought or speech alone. She also covers the Supreme Court's two key hate crimes case, explicating the reasoning of the two and explaining why the Court accepts punishment enhancements based on motivation. Finally, she points out that conservative critics of the bill's emphasis on crimes' motivations are plainly comfortable with looking to motivation in other contexts -- such as in a sui! t alleging that an employer has committed so-called "reverse discrimination" against a white employee -- and thus, she suggests that their real discomfort must be with gay rights, not with the bill's focus on motivation.

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