Sexual Orientation and the Law Blog

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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Gay/lesbian recognition apparently still lagging in law firm diversity measures and efforts

The National Law Journal reports that "[s]ome of the most powerful attorneys in the profession will gather on May 6 in the New York offices of Debevoise & Plimpton to discuss a matter that has long plagued their profession: diversity, or rather the lack thereof, in the attorney ranks." 

The meeting will mark the incorporation of the Leadership Council on Legal Diversity, a new organization comprising law firm managing partners and general counsel. The mission is to advance the Call to Action — the landmark 2004 document calling for greater commitment to diversity within legal departments that was signed by the general counsel to many of the largest companies in the United States. The council plans to develop strategies for promoting diversity throughout the industry and hold legal leaders accountable for the makeup of their legal staff.

The article makes no mention of gays and lesbians, so it's unclear whether sexual orientation is included in these leaders' definition of diversity.

The NLJ's sister publication Minority Law Journal reported last week on its annual Diversity Scorecard.  Although gays and lesbians are not included in the scorecard, this year for the first time MLJ attempted to gather data on gay and lesbian lawyers.  "It’s worth noting, however," MLJ says, "that this data seems to be less complete than some of our other data. Some 55 firms said that either they had no openly gay or lesbian lawyers or that they did not track this information."

Data on firms with the most gay and lesbian lawyers is available on the MLJ's "Measures of Diversity" page.

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An openly gay justice for the Supreme Court?

Kathleen Sullivan, a top New York appellate lawyer, constitutional scholar, and former dean of Stanford Law School, has landed on most people's lists of possible Obama Supreme Court appointees.  What's less known about Sullivan is that she is a lesbian: see coverage at gaypolitics.com, Politico, and thenewgay.net. 

After Obama's relative neglect of gays and lesbians during the presidential campaign, his embrace of conservative pastor Rick Warren, his ambiguous reaction to the Iowa marriage decision, and his lack of action on gay issues thus far as president, the appointment of a supremely qualified openly gay woman would no doubt improve his lukewarm relationship with the community.

Obama is on record as supporting civil unions and expanded federal benefits for same-sex couples, but as opposed to equal marriage rights, a position he has explained (oddly, for a former constitutional law professor) in terms of his personal views, rather than his understanding of what the law requires.  Still, Obama knows constitutional law like few presidents before him.  Who among us would not love to listen into this job interview?

According to gaypolitics.com, Sullivan filed amicus briefs in Bowers v. Hardwick and Lawrence v. Texas. Something that might attract more attention is that she also wrote the amicus for the American Association of University Professors in FAIR v. Rumsfeld, the case in which law faculty members sought to bar military recruiters because of their discrimination on the basis of sexual orientation.  Sullivan has argued five cases at the Court.

Having met Sullivan at the ABA litigation conference last week in Atlanta, I can testify that she's a lovely person.  She and conservative appellate specialist Ted Olson participated in a panel on Supreme Court litigation, and Olson, noting that Sullivan is considered a possibility for the Court, gave her a vigorous endorsement.

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It's prom season, and the ACLU is ready with advice on same-sex dates

Prom season is in full swing, and the ACLU reports it is seeing an uptick in calls and emails from students whose schools have either tried to stop them from bringing same-sex dates or tried to enforce gender-stereotyped dress codes.  "Both are illegal," says the ACLU.  "As Deb Price of the Detroit News pointed out in her column today, the ACLU affiliates in both Ohio and Mississippi have recently gotten schools to back down from discriminatory prom policies."  The ACLU LGBT Project has created a Prom Resources Page to help LGBT students.

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