Sexual Orientation and the Law Blog

State civil rights commission unanimously opposes overturning Iowa marriage ruling

The bipartisan commission voted unanimously to formally support the Iowa Supreme Court's decision allowing gay marriage and to formally oppose any constitutional amendment that would overturn the decision, reports the Des Moines Register.

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As more states offer same-sex marriage, some opponents demur on the consequences

With same-sex marriage no longer a theoretical boogeyman but rather a reality in six states, Steve Chapman of the Chicago Tribune decided to check in with several high-profile conservatives to see how they think the experiment is going.

Opponents of same-sex marriage reject it on religious and moral grounds but also on practical ones. If we let homosexuals marry, they believe, a parade of horribles will follow -- the weakening of marriage as an institution, children at increased risk of broken homes, the eventual legalization of polygamy and who knows what all.

. . .

But with the experiment looming, some opponents seem to be doubting their own convictions. I contacted three serious conservative thinkers who have written extensively about the dangers of allowing gay marriage and asked them to make simple, concrete predictions about measurable social indicators -- marriage rates, divorce, out-of-wedlock births, child poverty, you name it.

You would think they would react like Albert Pujols when presented with a hanging curveball. Yet none was prepared to forecast what would happen in same-sex marriage states versus other states.

Professional anti-marriage activist Maggie Gallagher, who declined to speak with Chapman on the subject, instead chooses the more comfortable forum of the National Review Online to offer "five preliminary predictions about the short-term effects of SSM," for which she offers no data, empirical support, or further explanation.  Indeed, Gallagher appears to concede that such speculation is pointless, saying she "would welcome a serious project by serious people, across ideological lines, to try to design a serious study."

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Article: "Further Thoughts on Proposition 8 and Retroactivity: A Response to Choper"

In an article in the California Journal of Politics and Policy, Professor Courtney Joslin of UC-Davis School of Law responds to an earlier article by Jesse Choper titled Should Proposition 8 Be Held to be Retroactive?

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Ted Olson's road to advocacy for same-sex marriage

The NYT has a nice piece on Ted Olson, the conservative stalwart appellate attorney who's helping to drive a federal challenge to California's Prop 8.

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In California federal lawsuit, Obama shifts tone on DOMA while still defending it

President Obama said Monday he still wants to scrap DOMA and that his administration's stance in a California court case is not about defending traditional marriage but instead about defending an existing law based on its constitutionality.  According to the AP,

Justice Department lawyers filed new papers Monday seeking to throw out a lawsuit brought by a gay couple challenging the 1996 Defense of Marriage Act, or DOMA. Gay rights groups say that by doing so, the administration is failing to follow through on campaign promises made by Obama last year to work to repeal the law.

Department lawyers are defending the law 'as it traditionally does when acts of Congress are challenged,' Obama said in a statement.
...

The government says in its court filing that it will defend the statute in this case because a reasonable argument can be made that the law is constitutional — a standard practice of government lawyers.

The reply brief filed Monday summarizes the administration's position this way:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here. . . .

The case is Smelt v. U.S. NO. SACV09-00286 DOC (MLGx) (C.D. Cal). The full reply brief is available here.

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In the face of Obama's complacency, gays must commit to new strategies and tactics, The Advocate urges

An excellent political analysis in The Advocate examines President Obama's disappointing record on gay issues and ponders how, going forward in the new political and legal climate, advocates for LGBT equality must adapt, respond, and continue fighting. While they cannot depend on Obama, the piece suggests, they can still be inspired by him.

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Analyzing the legal strategies in the Olson/Boies Prop 8 lawsuit

As previously reported, the federal judge in the high-profile challenge to California's Proposition 8 filed by attorneys Ted Olson and David Boies has ordered the parties to file new, more detailed statements of their legal positions.  A helpful article in the San Francisco Chronicle analyzes the legal positions that have been asserted on both sides.  Much of the dispute comes down to whether the case can be disposed of on summary judgment, as the conservative religious defendants in the case urge, or whether a trial is necessary to determine such issues as the suitability of gays and lesbians as parents, comparisons of marriage and domestic partnership, the extent of discrimination based on sexual orientation, and whether Prop 8 was primarily motivated by anti-gay religious bigotry.

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New, larger role for women in combat also undermines military myths about gays, activists say

Women are more frequently engaged in combat roles in Iraq and Afghanistan and the military has adapted out of necessity, reports the New York Times.  The story also notes:

The successful experiences of military women in Iraq and Afghanistan are being used to bolster the efforts of groups who favor letting gay soldiers serve openly. Those opposed to such change say that permitting service members to state their sexual orientation would disrupt the tight cohesion of a unit and lead to harassment and sexual liaisons — arguments also used against allowing women to serve alongside men. But women in Iraq and Afghanistan have debunked many of those fears.

“They made it work with women, which is more complicated in some ways, with sex-segregated facilities and new physical training standards,” said David Stacy, a lobbyist with the Human Rights Campaign, which works for gay equality. “If the military could make that work with good discipline and order, certainly integrating open service of gay and lesbians is within their capability.”

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