Sexual Orientation and the Law Blog

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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