Sexual Orientation and the Law Blog

NYT editorial on ending Don't Ask, Don't Tell

In an editorial yesterday, the NYT urged Obama to move quickly to make good on his pledge of ending DADT:

“Don’t ask, don’t tell” is not just a technicality on the books. It is actively being used to drive gay men and lesbians out of the military — more than 13,000 since the law was adopted, according to the Servicemembers Legal Defense Network. That includes people with vital skills, like Arabic translators. The legal defense network, which helps people facing charges under “don’t ask don’t tell,” estimates that 644 people have been discharged under the law since Mr. Obama took office.

The policy of drumming gay men and lesbians out of the military is based on prejudice, not performance. Gay people serve openly and effectively in the armies of Britain, Israel, Australia and Canada.

The winner of last year’s secretary of defense essay contest was a piece by an Air Force colonel, published in Joint Force Quarterly, a military journal, that called “don’t ask, don’t tell” a “costly failure” and debunked the canard that unit cohesion would be harmed if gay service members were allowed to be open about their sexuality.

The law singles out a group of Americans for second-class treatment, forcing them to hide who they are and to live in fear of being found out and discharged. The policy hurts the military by depriving it of the service of a large number of loyal and talented Americans.

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NPR wrap-up on the Prop 8 trial

Testimony in the trial challenging California's Proposition 8 has ended, and NPR has this wrap-up.  The judge who heard the case has said he will take time to review the evidence before allowing closing arguments, probably in March or April.

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Prop 8 trial coverage and analysis in the New Yorker

There are lots of ways to keep up with what's been happening in Perry v. Schwarzenegger, but one of the best might be the readable and insightful dispatches being filed by Margaret Talbot for the New Yorker. 

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Obama commits to work for repeal of DADT this year, but will he really lead?

In his State of the Union speech, President Obama pledged, "This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are."

The Palm Center at the University of California Santa Barbara offers this analysis:

Experts said tonight that President Obama’s endorsement of congressional repeal of “don’t ask, don’t tell” during his State of the Union address falls short of the challenges ahead for repeal in 2010. "Including repeal in the State of the Union Address makes clear that the President considers this issue important," said Christopher Neff, Deputy Executive Director of the Palm Center and previously the first federal lobbyist for “don’t ask, don’t tell” repeal. "Yet the path to repeal will require both a command decision by the President and a clear timeline which follows. Leadership from the Pentagon will likely be mixed during upcoming hearings, and votes will be close in the House and Senate. It’s the President who is the game-changer on 'don't ask, don't tell' in 2010.”
 
As explained in a Palm Center report that will soon be released in published form, current law gives certain discretionary authorities to the President and the Defense Secretary regarding how they implement the policy, which is similar, but not identical to, the law. Nathaniel Frank, Senior Research Fellow at Palm and author of “Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America,” explained that, “President Obama has the opportunity to modify the gay ban’s application through executive action. Many experts have suggested the President can direct the Secretary of Defense to adjust the investigative standards for 'don't ask, don't tell' that require credible information from a reliable source.” In its report, the Palm Center outlines an analysis suggesting that a zone of privacy is appropriate for off-base, off-post, off-duty conduct. “Such a zone could be created by President Obama if he were willing to do so.”
 
Adding to support for the President were recent remarks in favor of repeal from former Joint Chiefs Chairman General John Shalikashvili, and New York Senator Kirsten Gillibrand. In a statement released today in conjunction with Sen. Gillibrand’s office, the General stated that now is an appropriate time to allow for open service: “As a nation built on the principle of equality, we should recognize and welcome change that will build a stronger, more cohesive military. It is time to repeal ‘don’t ask, don’t tell’ and allow our military leaders to create policy that holds our service members to a single standard of conduct and discipline.”

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Catching up on the Prop 8 trial

Our colleague Ruthann Robson at Con Law Prof Blog reports the highlights from last week in Perry v. Schwarzenegger, where the challengers to the constitutionality of California's Proposition 8 are expected to rest their case today after almost two weeks of trial.  Transcripts of the first nine days are here.

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Federal court hears testimony on economics of same-sex marriage

Lee Badgett, research director of the Williams Institute at UCLA Law School, testified this week in the Perry v. Schwarzenegger trial in San Francisco on the demographic characteristics of same-sex couples and their children, the economic effects of excluding same-sex couples from marriage, and how marriage equality might affect society and the institution of marriage.

In response to a question from plaintiffs' attorney David Boies about the economic harms to same-sex couples with children who are not able to marry, Badgett testified, “It's costing couples thousands of dollars a year in additional costs because they can't marry…that's thousands of dollars that will not be available to spend on children or to save for their college education or whatever parents might want to actually do with that money."

Badgett’s testimony drew on analyses that are part of her new book, When Gay People Get Married: What Happens When Societies Legalize Same-sex Marriage, along with a series of studies she has authored assessing the economic impacts associated with marriage equality.  She also referenced several Williams Institute studies using Census Bureau data to describe the demographic characteristics of same-sex couples and their children.

In summarizing her work, Badgett testified, “I have looked at demographic data. I have looked at the reasons same-sex couples give for marrying.  I have looked at how they are treated after they are married by their heterosexual communities and families.  I have looked at behavior of heterosexual individuals before and after same-sex couples were allowed to marry, and I have seen no evidence of any harmful effect of allowing same-sex couples to marry.”

Click here for a full transcript of the trial, including Badgett’s testimony (Day 6). Click here for Associated Press story on Badgett’s testimony.

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As courtroom and media strategies unfold, high-profile Dems criticize Obama on gay rights

David Boies, the prominent Democratic trial lawyer who is co-litigating the federal marriage case in California with Republican Ted Olsen, tells NYT columnist Maureen Dowd that "I hope my Democratic president will catch up to my conservative Republican co-counsel."  And San Francisco Mayor Gavin Newsom says of Obama's opposition to same-sex marriage, "it's fundamentally inexcusable for a member of the Democratic party to stand on the principle that separate is now equal, but only on the basis of sexual orientation. We've always fought for the rights of minorities and against the whims of majorities."

The Dowd column is more evidence that Boies and Olsen are combining a careful litigation strategy with a savvy media strategy:

As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state's ban on same-sex marriage, Olson reviewed the case: "We're going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don't want to recognize gays and lesbians as normal, as human beings."

Boies, wearing a flag pin on his lapel, said that the state of California is engaged in "gay bashing." He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: "These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren't really procreating, have a right to get married."

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Out lesbian law professor selected as federal magistrate judge

Donna M. Ryu, a faculty member at the University of California, Hastings College of the Law and, according to the National LGBT Bar Association, an out lesbian, has been appointed as a magistrate judge for the U.S. District Court for the Northern District of California.  The court's press release is here, and the NLGBTBA announcement is here.

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Blogger quoted in Article re: Prop 8 Trial

Yours truly was quoted in a recent news Article re: the current federal Prop 8 challenge.  It is not the most eloquent statement, but nonetheless, here is the link to the article in the Monterey County Herald.

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Star attorneys to argue SCt case on Christian group's exclusion of gay students at public law school

Later this spring the Supreme Court will hear Christian Legal Society v. Martinez, which presents the question of whether a public university law school with a non-discrimination policy can refuse to fund a religious student group because the group requires its members to agree with its core religious beliefs, thereby excluding gay and lesbian students. 

The case is already making news because of the high-profile lawyers the parties have hired, reports the Blog of the Legal Times: former federal appellate judge Michael McConnell, for the Christian student group; former Solicitor General Gregory Garre, for the University of California Hastings College of Law; and Paul Smith of Jenner & Block (who argued Lawrence v. Texas) for the law school LGBT student group that has intervened in the case. 

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Text of Supreme Court gag order on Prop 8 trial

The opinion and dissent in the Supreme Court's 5-4 ruling banning video broadcast of the Prop 8 trial are available here.

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SCOTUS nixes video of Prop 8 trial, citing potential witness harassment

The Blog of the Legal Times reports:

By a 5-4 vote, the Supreme Court has just stayed or halted plans to transmit the video and audio of a high-profile federal trial in California to other courthouses around the country. In an unsigned opinion, the Court said the U.S. District Court for the Northern District of California had not followed proper procedures when it changed its local rules to allow the broadcast of the trial on the Proposition 8 ban in California on same-sex marriage.

The decision does not speak broadly about the issue of camera access to federal trials, but does state that "irreparable harm" would result from wide broadcast of the trial, because of possible witness harassment and intimidation. Proponents of Proposition 8, who opposed the telecast, warned of the harms, though the advocates of same-sex marriage, who favored broadcast access, said the claims were without foundation.

Justice Stephen Breyer dissented, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor. "The public interest weighs in favor of providing access to the courts," wrote Breyer.  

Professor Sheila Kennedy of the Indiana University School of Public and Environmental Affairs has an interesting counterpoint:

The witnesses set to testify in defense of Proposition 8 have asked the Court to keep the media out. They claim they will be “endangered” if their identities are known. Really? These people base their defense of Proposition 8 on their assertion that tradition and morality and public opinion are on their side. If that is so, why not speak out publicly? Why not bask in the approval of the public? The only possible answer is: the public’s opinion has changed.

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GA teacher fired for putting "hit" on gay student

The Clayton County, Georgia, school board has fired a high school teacher accused of ordering a "hit" on a gay student, the Atlanta Journal-Constitution reports:

[Teacher Randolphe] Forde was arrested and charged in October with making terroristic threats against an 11th grade student in one of his classes. Authorities allege that Forde asked whether the student was gay, then offered $50 to a classmate to "put a hit" on the student.

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Prop 8 trial: Day 2 coverage and analysis

Shannon Minter, legal director of the National Center for Lesbian Rights, has a very good recap and analysis of Day 2 of Perry v. Schwarzenegger over at the Pam's House Blend blog.  Day 2 of the landmark federal civil rights trial in San Francisco focused on testimony by two prominent historians, Nancy Cott and George Chauncey, who have contributed amicus briefs in a number of same-sex marriage cases.

The NYT also has coverage, and the liberal blog Firedoglake is live-blogging the trial.

Another story nicely captures Chauncey's testimony and its intended role in the legal case being built by attorneys Ted Olson and David Boies:

After viewing several television commercials produced by Proposition 8's sponsors, Chauncey said images and language suggesting the ballot initiative was needed to ''protect children'' were reminiscent of earlier efforts to ''demonize'' gays, ranging from police raids on gay bars during the 1950s to campaigns to rid public schools of gay teachers in the 1970s.

''You have a pretty strong echo of this idea that simple exposure to gay people and their relationships is somehow going to lead a whole generation of young kids to become gay,'' Chauncey said. ''The underlying message here is something about the undesirability of homosexuals, that we don't want our children to become this way.''

Chauncey's views were introduced to help persuade Chief U.S. Judge Vaughn R. Walker, who is hearing the case without a jury, that the California measure unlawfully discriminates against gays because it was based on an underlying hatred or moral disapproval and serves no legitimate public aim.

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Olson and Boies take to the airwaves

High-powered lawyers Ted Olson and David Boies aren't just litigating same-sex marriage rights in a California federal court room, they're also complementing their litigation strategy with a media campaign to educate ordinary Americans and influence public opinion.  Besides Olson's piece in Newsweek this week, the pair appeared this evening on the Rachel Maddow Show.

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Interactive map on state-by-state status of marriage

The Wall Street Journal has a terrific interactive map (apparently available to non-subscribers) detailing the state-by-state status of same-sex marriage, including the dates of passage of relevant statutes or constitutional amendments.

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Perry v. Schwarzenegger: first-day news and links

• Coverage of the first-day proceedings from the New York Times, 
• Live-blogging of the trial from the anti-Prop 8 perspective.
• Plaintiffs' attorney Ted Olson's opening statement as prepared.
• Coverage from Monday evening's PBS Newshour, including an interview with the author with the New Yorker article on the case.

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Legal primer on the Prop 8 trial

Our colleague Ruthann Robson at Conlaw prof blog has this excellent primer on the Prop 8 trial that got underway yesterday in San Francisco.

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Ted Olson on "the conservative case for gay marriage"

Ted Olson, the high-profile appellate litigator and former Bush administration solicitor general who's spearheading the federal trial on California's Prop 8, writes in Newsweek that his involvement in the case is based on a "lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, and on my rejection of what I see as superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights."

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New Yorker preview of Prop 8 showdown in federal court

An extraordinary federal trial begins today in San Francisco: a challenge to California's Proposition 8 (which prohibited same-sex marriage), led by noted attorneys from opposite sides of the political spectrum, David Boies and Ted Olson.  The New Yorker has an excellent article previewing the case and addressing the ultimate question of whether it's yet time for a same-sex marriage case to make it to the Supreme Court.

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