Sexual Orientation and the Law Blog

AALS moves to protect same-sex partners while meeting in DOMA state

From Professor Nancy Polikoff's blog Beyond (Straight and Gay) Marriage:

Next week, the Association of American Law Schools will hold its annual meeting in New Orleans. This is the annual meeting of law professors from across the country. In acknowledgement of the needs of same-sex and unmarried partners in a state with a "defense of marriage" act, the AALS's executive director, Susan Westerberg Prager, today sent out the following message to all attendees. I am reprinting it in full here because I hope other associations with plans to hold meetings in states that refuse to recognize the needs of same-sex and unmarried different-sex partners will follow this fine example provided by the AALS.

December 28, 2009
Message to Annual Meeting Attendees:

Because Louisiana has placed in its constitution what is commonly referred to as a "Defense of Marriage" law, we have put in place some precautionary assistance for Annual Meeting registrants and their guests. This message is intended for those of you who are either unmarried but have a partner, married but in a marriage that would not be recognized by Louisiana Law, or who have a family member in one of these categories who will travel with you to New Orleans. Even in states that do not have such a law, there have been reports of hospital personnel who will not allow same sex partners visitation accorded family members, or who may even attempt to make the exercise of a health care power of attorney difficult. (For convenience of communication, I use the term "partner" in this message to refer to married and unmarried partners.)

AALS Managing Director Jane La Barbera has explored the practices in New Orleans, and has vigorously emphasized to the New Orleans Convention Bureau our concerns. We have received strong assurances that health care Powers of Attorney will be recognized by hospitals in the region, regardless of the relationship of the patient and the person holding the power. We have had that verified by the leadership of the Tulane Medical Center.

However, we do want to be of assistance to you in New Orleans if any of the following difficulties occur during the AALS Annual Meeting. Should any attendee or guest of an attendee experience a hospital refusing access (to the patient) to the patient's partner, or refusing the partner access to the patient's hospital doctors, or if hospital personnel are reluctant to recognize a power of attorney, we are providing the following list of individuals who are available to assist you. (The first is a local lawyer provided to AALS by the New Orleans Convention and Visitors Bureau without fee to AALS or our registrants. The second and third are AALS volunteers: Taylor is a Professor colleague who is incoming chair of the AALS Section on Sexual Orientation and Gender Identity Issues, and Jim is the lawyer spouse of the longtime Professor and Dean who is writing this message.) (I am omitting the phone numbers provided for the lawyers --np)

1. Robert M. Walmsley, Jr., Fishman, Haygood, Phelps, Walmsley, Willis & Swanson L.L.P
2. Professor Taylor Flynn
3. Jim Prager

All of these individuals stand ready to assist you with the hospital staff, and you should not hesitate to call upon them. They will assist in communicating with the hospital staff, working their way through the hospital's chain of authority if necessary. We recommend that you try to reach Mr. Walmsley first unless the hour of your call would make it unlikely that he would be at his firm.

Should you have difficulty reaching a member of this group, contact the AALS Office at the Hilton New Orleans Riverside by calling the hotel at (304) 561-0500 and asking for the AALS Office in the Marlborough Room. If the office is closed, make sure you have left messages for both Taylor and Jim, and try each of them again. I do recommend that you and your partner each carry with you a health care power of attorney. Even in extreme circumstances where the power contemplates are not present, it is a useful statement of your point of view about the person(s) closest to you, and that can help get the designated individual access to you and to your hospital doctor if you are hospitalized.

We, of course, hope that no attendee or family member is faced with the need to navigate such a problem, but we do want you to call upon us should you find yourself in circumstances where we can be of help. We very much look forward to welcoming all attendees and their guests to the 2010 AALS Annual Meeting.

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Success grows for gay candidates, even as it lags for legal equality

The NYT ponders the phenomenon of more gay candidates winning election to public office, even as support lags for giving gays the civic and legal equality of marriage rights. 

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Meet the scholar/politico/activist who gives intellectual respectability to the right's demands for homophobic legal policy

The NYT Magazine has this profile of Princeton Professor Robby George, whose esoteric natural law theories are embraced by those who seek to deny equality of citizenship to gays and lesbians.

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Webcast on "The Higher Cost of Being Gay: Life, Death, and Taxes"

Same-sex couples face higher costs than their heterosexual counterparts, largely because federal law either precludes or does not require equivalent treatment. In particular, the Defense of Marriage Act (DOMA) prohibits the federal government from recognizing same-sex couples as married. In this webcast from the Tax Policy Institute and the Williams Institute at UCLA Law School (based on a panel discussion held Thursday in Washington, DC), experts discuss issues affecting same-sex couples including their higher lifetime tax costs, how the estate tax affects them, and the difficulties older same-sex couples face in planning for retirement.

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Jim DeMint, tea party poster boy, sounds off on gays, marriage, and federalism

Veteran Washington journalist Al Hunt profiles Senator Jim DeMint of South Carolina, the darling of the "tea party" movement, and his all-far-right, all-the-time views.  DeMint's views on gays reveal both a theocratic view of government and a dangerous ignorance of the constitutional scheme of federalism:

He takes a hard line on social issues — he’s passionately anti-abortion and pro-guns. He has been most outspoken as an opponent of any form of gay marriage.

“Marriage is a religious institution. The federal government has no business redefining what it is,” Mr. DeMint says.

This is one issue where he doesn’t support states’ rights; state government shouldn’t have the right to permit gay marriage.

“Governments should not be in the business of promoting a behavior that’s proven to be destructive to our society.”

He cringes at the notion of a gay or lesbian president: “It would be bothersome to me just personally because I consider it immoral.”

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New York extends anti-discrimination protection to transgender state employees

New York Governor David Paterson has issued an executive order extending anti-discrimination policies to gender identity for state employees. Some background info from the Human Rights Campaign:

An executive order prohibiting discrimination in state employment is the furthest extent to which any governor is able to exercise his or her executive power. Extending protections to private employees must be accomplished by the state legislature. New York joins eight other states in which an executive order, administrative order, or personnel regulation prohibits discrimination against public employees based on sexual orientation and gender identity: Delaware, Indiana, Kansas, Kentucky, Maryland, Michigan, Ohio, and Pennsylvania.

In addition, twelve states and the District of Columbia prohibit full employment discrimination on the basis of sexual orientation and gender identity: California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.  Nine more states, including New York,  prohibit employment discrimination based only on sexual orientation. For an electronic map showing where employment non-discrimination stands in the states, please visit: www.HRC.org/State_Laws.

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NPR on Uganda's anti-gay law

NPR's Morning Edition had a particularly good -- and disturbing -- report on Uganda's proposed law to criminalize homosexuality.  An excerpt:

Ugandans may soon have a choice to make. Homosexuality has been illegal there for more than 100 years. Now lawmakers are considering legislation that would go further. The Anti-Homosexuality Bill of 2009 would jail consenting adults who engage in gay sex. It would give life sentences to people in same-sex marriages.

David Bahati, a first-term lawmaker, wrote the bill.

"This is a defining bill for our country, for our generation. You are either anti-homosexual or you're for homosexuals, because there's no middle point. Anybody who does not believe that homosexuality is a crime is a sympathizer," Bahati says.

It is the first bill Bahati has ever written, and he calls it a "very wonderful piece of legislation." His bill would impose the death penalty on adults who have gay sex with minors. And it would jail anyone who fails to report gay activity to police within 24 hours.

And what if his brother were engaging in homosexual activity?

"I'd arrest him myself and take him to the police," Bahati says.

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Prof. David Richards on the larger meaning of the SCt's sodomy cases

Professor David A.J. Richards of NYU Law School examines the Supreme Court's journey from Bowers v. Hardwick to Lawrence v. Texas in his book The Sodomy Cases (University Press of Kansas 2009).  From the publisher's description:

For America's gay community, the question of rights is often reduced to the issue of privacy. Until very recently, even though this right has been upheld by the Supreme Court in landmark cases relating to contraception and abortion, the issue of 'non procreational sex' continued to trigger a double standard for gay men. Now David Richards, a leading legal scholar who is himself gay, shows how two other landmark cases nearly twenty years apart shed light on America's evolving views of privacy. The Supreme Court's decision in Bowers v. Hardwick (1986) stemmed from a 1982 gay-sex arrest in an Atlanta home under a Georgia law that criminalized sodomy - a case not originally prosecuted, but then pursued in court to challenge the statute's constitutionality. Lawrence v. Texas (2003) followed a similar arrest in 1998 in Houston, where Texas law also criminalized sodomy - but only when practiced by members of the same sex. Richards views these cases as the nadir and apogee of the gay community's efforts to fight discrimination through the courts. In Bowers, the Supreme Court ruled that there was no constitutional protection for sodomy and that states could outlaw those practices. But in Lawrence, the Court overturned the Texas law - and the Bowers decision as well - because it denied due process protection to consenting adults whose sexual practices were conducted in private. Justice Kennedy's majority opinion reaffirmed a constitutionally protected right to privacy that prevented the government from regulating intimate behavior. Tracing the Court's deliberations, Richards shows how Lawrence unambiguously establishes that the right to a private life is an innately human right and that our constitutional right to privacy rests on the moral bedrock of equal protection. He shifts gracefully from the law to literature, and from the Courts to the wider culture, to offer a brilliant analysis of the relevant arguments, going beneath their surface to link them to the emotional and moral foundations of the controversies raging around these decisions. Both of these cases show a Supreme Court ready to take seriously the idea that homosexuals have human rights - and that these rights are the basis of judicially enforceable constitutional rights. In describing these challenges to public prejudice, Richards' book offers students and general readers new insight into the practice and theory of constitutional law.

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9th Circuit rules that Prop 8 group can keep its strategy emails secret

The 9th Circuit has ruled that forcing an anti-gay marriage group to turn over internal e-mails would violate the group's First Amendment rights.  The interlocutory ruling stems out of federal litigation challenging California's Proposition 8. Lawyers for gay couples had sought discovery of internal campaign communications relating to campaign strategy and advertising by Prop 8 proponents in order to support their argument that “[t]he disadvantage Prop. 8 imposes on gays and lesbians is the result of disapproval or animus against a politically unpopular group” in violation of the Constitution's equal protection and due process clauses.  The full 9th Circuit opinion is available here.

UCLA law professor and blogger Eugene Volokh questions whether the 9th Circuit got the law right.

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White House condemns Uganda's proposed kill-the-gays law

The Advocate reports:

In its strongest statement yet, the Obama administration condemned a homophobic Ugandan bill that would carry a death sentence for acts of homosexuality in some cases.

“The president strongly opposes efforts, such as the draft law pending in Uganda, that would criminalize homosexuality and move against the tide of history,” read the White House statement that came late Friday in response to an inquiry from The Advocate.

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Meet the shadowy industry that gives muscle to the fight against marriage equality

The NYT reports:

As the political battle over same-sex marriage plays out in state capitals across the country, several California companies have emerged as the go-to players for opponents of the marriages.

One of the companies, Mar/Com Services Inc., lists its business address here in San Francisco, a city well known for its large and politically active gay population. When Maine residents opposed to a new law permitting same-sex marriage decided earlier this year to challenge it, they hired Mar/Com to do the production work for the television and radio advertisements.

Of the $2.7 million spent to pass the Maine measure, about 75 percent flowed to companies in California, according to campaign disclosure documents. And while large chunks of that money were subsequently paid out to television and radio stations in Maine, California companies billed hundreds of thousands of dollars for consulting work, phone lists, printing and other services. 

The story goes on to describe how the companies prefer to keep their work quiet, hiding behind PO boxes and answering machines.

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Houston becomes largest city to elect openly gay mayor

“Tonight the voters of Houston have opened the door to history,” said Annise Parker, the city's newly elected mayor, standing by her partner of 19 years, Kathy Hubbard, and their three adopted children. “I acknowledge that. I embrace that. I know what this win means to many of us who never thought we could achieve high office.”

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Bill would allow gay troops to testify openly in Congress

From the Palm Center at UC-Santa Barbara:

Congressman Alcee Hastings (D-FL) [has] introduced legislation to allow gay members of the armed forces to testify openly at Congressional hearings. The bill, the “Honest and Open Testimony Act,” has 27 co-sponsors.  If it becomes law, it will allow gay troops to testify openly without risk of discharge or other punishment.  Because the “don’t ask, don’t tell” policy requires the discharge of service members who acknowledge that they are gay, lesbian, or bisexual, the bill would serve as the first relaxation of the military ban in sixteen years.
 
Hearings on “don’t ask, don’t tell” that were promised by the end of this year have been postponed and are now expected in early 2010.  The new bill would apply to those as well as any other hearings on the topic in the House or Senate. It is seen as a “carve-out” because it would carve out, and drop, a section of "don't ask, don't tell" for the purpose of giving Congress access to full information.
 
Several recent initiatives to soften or suspend “don’t ask, don’t tell,” including a moratorium proposed by Senator Kirsten Gillibrand (D-NY) as well as a proposal by Congressman Hastings to de-fund the implementation of the ban, were blocked by Congressional leadership and the White House.  The new bill is the latest in this trend, and is seen as consistent with comments by President Obama and his Defense Secretary, Robert Gates, that they are seeking “more humane” and flexible ways to apply “don’t ask, don’t tell” by relaxing its enforcement.

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In 2004, University of Pennsylvania Law Professor Tobias Wolff published an article in the Iowa Law Review in which he argued that gay troops’ inability to testify openly in Congress violates their First Amendment right to free speech.  The Military Personnel Subcommittee of the House Armed Services Committee held hearings on “don’t ask, don’t tell” in July 2008 but no openly gay troops were included in the panel of witnesses who testified.

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DOMA showdown?: the judiciary vs. the administration on health benefits for gay spouses

Our colleague Ruthann Robson from Conlawprof Blog highlights a possible looming showdown between the chief judge of the 9th Circuit U.S. court of appeals and the Obama administration over spousal health benefits for gay employees of the Court.

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Rick Warren's ties to Uganda's proposed death-to-gays law

Rick Warren, whom Barack Obama chose to deliver the invocation at his inauguration, has never exactly been a favorite with gays due to his religious-political agitation against marriage equality.  Now Warren turns out to have some unsavory connections to a Ugandan legislator who has authored a bill providing for prison or even death for various offenses related to homosexuality. 

According to World Politics Review,

The Ugandan penal code already criminalizes sexual relations "against the order of nature," a characterization that is frequently used to prosecute gays. Under the proposed Anti-Homosexuality Bill of 2009, homosexual relations are specifically targeted. Anyone in a position of authority who is aware of a gay or lesbian individual has 24 hours to inform police or face jail time. Individuals found to engage in efforts to sexually stimulate another for the purpose of homosexual relations, or found touching another for that purpose, will face life in prison.

Those who engage in "aggravated homosexuality" -- defined as repeated homosexual relations or sexual contact with others who are HIV/AIDS infected -- will face the death penalty.

Blogger Andrew Sullivan calls on Warren (who was the featured guest this past Sunday on Meet the Press) to "stop hiding his own enmeshment with the most virulent forms of fundamentalist hatred under the veil of media-savvy benevolence":

His schtick of actually being the nice evangelical -- a schtick that got him to Obama's inauguration -- is a lie. If he cannot condemn this fascist act of violence against a tiny minority of vulnerable human beings, then his position in this struggle is clear enough.

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