April 16, 2009
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.
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."
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.
April 14, 2009
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.
April 13, 2009
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?
UCLA Williams Institute to hold panel on legal and business impacts of same-sex marriage
The Williams Institute at UCLA Law School will hold a panel with experts discussing "The Legal and Business Impact of Extending Marriage, Civil Unions, and Domestic Partnerships to Same-Sex Couples." The event will be at 6 p.m. April 22 in the Korn Convocation Hall of UCLA's Anderson School of Management. Attendees may RSVP here.
According to the news release, the panel will explore the impact on businesses and the economy of extending marriage to same-sex couples. Panelists will discuss the impact of the recognition of same-sex couples on employee productivity, recruitment, and retention; the costs of providing employee benefits; and the creation of personnel policies that comply with both state and federal law. In addition, they will present information on the impact to the economies of those states that have already extended the rights of marriage to same-sex couples.
April 12, 2009
Does the specter of Roe v. Wade hang over gay marriage and the Supreme Court?
After a week in which the number of states authorizing same-sex marriage doubled, the New York Times explains why the U.S. Supreme Court isn't likely to take up the issue anytime soon. Andy Koppelman puts his finger on the main reason why this is so: the groups like Lambda that have brought these cases, fearing what could happen if the federal courts get their hands on the issue right now, bring them entirely based on state constitutional law theories, so there's nothing to invoke the U.S. Supreme Court's jurisdiction.
Of course, as I have written elsewhere, interstate recognition of existing marriages is a different issue that necessarily requires a federal response, but no one's yet willing to touch that one either -- even though it's hard to dispute that if there's one thing that's more offensive than not being about to marry the person you love, it's being effectively divorced against your will by operation of law when you get a bona fide marriage from Massachusetts or Iowa, then later move to one of the majority of states that refuse recognition to such marriages.
The NYT article also has some insights from my political scientist colleague Pat Egan about shifts in public opinion about marriage equality.