Sexual Orientation and the Law Blog

How red state Indiana keeps dodging a marriage-discrimination amendment

Professor Sheila Kennedy offers a case study on how LGBT advocates and allies in conservative Indiana once again this year avoided passage of a state constitutional amendment mandating anti-gay marriage discrimination.  The keys: a difficult-to-amend constitution, a unified approach, coalition building, cogent political arguments, and strong support from the business community.

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New edition of Lambda's 'Of Counsel' focuses on transgender work

The new edition of Of Counsel, Lambda Legal's newsletter for cooperating attorneys and others interested in LGBT rights work, is now available.  This issue focuses on Lambda's work in the area of transgender rights and provides updates on various cases Lambda is litigating around the country.

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Hunter/Eskridge sexuality and law casebook scheduled for new edition in 2011

The pioneering Sexuality, Gender, and the Law casebook by professors Nan Hunter and William Eskridge -- popular but badly out of date, having been last updated in 2003 -- is scheduled for a new edition next year, Eskridge told me in a conversation last week at UCLA. Eskridge added that the book may be slimmed down and made a bit more focused than the previous edition.

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2010 Transgender Law Institute at Lavender Law

The 2010 Transgender Law Institute will be held in Miami Beach on August 26th as part of the National LGBT Bar Association’s annual Lavender Law Career Fair and Conference.  According to its sponsors, the Institute will allow experienced practitioners and academics focusing on legal issues affecting the transgender community to share their collective wisdom and to discuss cutting-edge legal strategies. 

A few caveats:  "To create an environment that encourages the free flow of information, registration is limited.  The meeting will be closed, the proceedings will not be recorded, and the Institute does not qualify for continuing legal education (CLE) credit."  Interested participants must submit an application, available here.

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MD will recognize out-of-state same-sex marriages

Maryland Attorney General Douglas F. Gansler (D) says effective immediately the state will recognize same-sex marriages performed elsewhere, even though the state does not license same-sex marriages, the Washington Post is reporting.  The full text of the attorney general's opinion is available here.

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Wisconsin symposium to consider law, gender, Indians, and immigrants

The Wisconsin Journal of Law, Gender, and Society devotes its annual symposium next Friday to the topic "Law, Gender & Citizenship: Contemporary Issues for American Indians and American Immigrants."  (Yours truly will be presenting one of the papers, discussing the relationship between adoption by same-sex couples and the federal Indian Child Welfare Act.) 

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New gay GOP group's reception at conservative confab may signal moderation in the right's anti-gay agenda

An interesting, well-reported piece by Chris Geidner in Metro Weekly describes the attitudes toward gay issues among attendees at last weekend's Conservative Political Action Conference, particularly the reception received by a new gay group called GOProud.  As Geinder reports, "few of the participants seemed to be there to stop the 'homosexual agenda.'"

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Experience of other militaries shows US needs more decisiveness, less drama for successful repeal of DADT

Militaries in other countries that allow gays and lesbians to serve openly achieved success by implementing an inclusive policy quickly and under decisive leadership, concludes a new study released this week by the Palm Center at UC-Santa Barbara.  (Click here for the NYT story.)

By contrast, the Army and Air Force chiefs of staff made the case in congressional testimony yesterday for further hand-wringing, foot-dragging, and drama. 

Other key conclusions of the Palm Center study are that open gays do not disrupt military effectiveness; that successful transitions did not involve creating separate facilities or distinct rules for gays or straights; and that the U.S. has a long tradition of turning to foreign armed forces as relevant sources of information about effective military policy.

“This study helps us understand exactly what works when major militaries end discrimination against their gay troops,” said the report's author, Nathaniel Frank. “Decisive action is a must, while slow-rolling implementation carries risks of muddling the process, a point the U.S. military itself is now beginning to express.”

This week, two top U.S. generals, Gen. David Petraeus, Commander of U.S. Central Command, and Gen. Raymond Odierno, head of US forces in Iraq, added marked words of support to the government’s plans to scrap the “don’t ask, don’t tell” policy. Gen. Petraeus supported further study, but noted that the change in Britain, Israel, the CIA, and the FBI was “uneventful.”  Asked if he believed soldiers on the ground cared if their peers were gay, he replied, "I'm not sure that they do," and suggested that service members are more concerned with the question of "how's this guy's shooting" than with who is gay or lesbian.  He also cited the evolution of the position of Gen. Colin Powell, who has reversed his opposition to openly gay service since 1993.

Gen. Odierno said, “My opinion is everyone should be allowed to serve, as long as we're still able to fight our wars and we're able to have forces that are capable of doing whatever we're asked to do.” He also supported the study process announced by the Pentagon earlier this month.

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Service chiefs' testimony this week may be critical juncture for lifting DADT

Will the heads of the Army, Air Force, and Marines follow the lead of their commander in chief, defense secretary, and joint chiefs chairman on Don't Ask, Don't Tell, or will they feed Congress excuses for not ending the ban?  That question may be answered this week when the service chiefs testify on Capitol Hill, reports Yahoo News: 

President Barack Obama says the policy unfairly punishes patriots who want to serve their country. Defense Secretary Robert Gatesagrees and has begun a yearlong study on how to mitigate the impact of lifting the ban.

Providing much-needed political cover is the chairman of the Joint Chiefs of Staff, Adm. Mike Mullen, who has said he thinks the law unfairly forces gay troops to compromise their integrity by lying about who they are.

But lawmakers, who are divided on whether to end the ban, say they want to hear from the service chiefs. They are the ones who would be in charge of putting any changes in place and responding to any fallout.

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75% of Americans, including Dick Cheney, believe DADT should go, but experts fear Pentagon will mismanage policy change

A Post-ABC News poll last week found that 75 percent of Americans favor letting gay people serve openly in the military. This compares with just 44 percent when the poll asked the question in 1993, reports the Washington Post's Eugene Robinson:

Those in favor of tolerance include 64 percent of Republicans -- along with bigger majorities of Democrats and independents -- and, in what may be the poll's most significant finding, 81 percent of adults under 30. In other words, abandoning the policy has overwhelming support in the age group that the nation depends on to enlist in the all-volunteer armed forces. 

Just how much the politics of DADT has changed was underscored this past weekend when Dick Cheney said "it's time to reconsider the policy."  As Robinson reports, Cheney observed, "I think the society has moved on. I think it's partly a generational question."

Nonetheless, according to the Palm Center at UC-Santa Barbara, a think tank devoted to issues of the military and sexual orientation, experts are expressing heightened concern about the rationale for a new Pentagon study group on gays in the military:

According to Nathaniel Frank, author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America, “Political and military leaders are saying that unless we study the feelings of straight troops, the Pentagon won't know how to manage the sensitive transition to an inclusive policy.  But the 1993 RAND report and other studies conclude that the way to implement this kind of change is to do it quickly and simply, and that if it’s done this way, and with the full support of senior leadership, it will be a smooth transition.” 

Secretary of Defense Robert Gates said this month that it would be “stupid” to “impose a policy from the top without any regard for the views of the people who were going to be affected.” Frank agreed it is important to consult the troops but distinguished between consulting and asking permission. “The military is a top-down institution for a reason,” he said. “The risk here is that political obstructionists will exploit whatever the troops say.”  

“Ironically,” said Palm Center director Aaron Belkin, "the Pentagon is doing the one thing that the research says not to do if you want to minimize problems, which is to drag the process out and act like it is fragile.  That's exactly how the 1993 conversation turned toxic.”

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Lambda sues feds over domestic partner benefits for 9th Circuit court employees

A long-running dispute between executive branch bureaucrats and one of the nation's most colorful judges has now become a federal lawsuit.  

Lambda Legal recently filed suit in the U.S. District Court for the Northern District of California seeking an order directing the U.S. Office of Personnel Management (OPM) to obey prior rulings by Ninth Circuit U.S. Court of Appeals Chief Judge Alex Kozinski awarding spousal health insurance benefits to Ninth Circuit judicial attorney Karen Golinski.  

The case could help determine the scope and proper application of the federal Defense of Marriage Act passed in 1996, which purports to bar any federal recognition of same-sex marriages.  It also spotlights another area where the Obama administration has actively opposed the rights of gays and lesbians.

Kozinski ruled in January 2009 that denying Golinski spousal health insurance for her wife, Amy Cunninghis, was illegal discrimination.  He ordered the Administrative Office of the U.S. Courts to submit Golinski's health benefits election form to her insurer, Blue Cross/Blue Shield.  OPM disagreed with Kozinski's order and told Blue Cross not to comply.

"It's a bit shocking that we've reached this point with the Obama Administration. Where is our 'fierce advocate' for LGBT rights?" said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal and co-counsel for Golinski.

Last November, Kozinski issued a further ruling explaining that he has the authority, under both the Ninth Circuit's Employment Dispute Resolution (EDR) Plan and the constitutional separation of powers doctrine, to interpret laws governing the rights of judicial employees.  His order gave OPM 30 days to comply or appeal.  The controversy drew heightened national attention when, instead of doing either, OPM issued a press release saying the order was not binding and that the U.S. Department of Justice had advised OPM not to comply in light of the federal Defense of Marriage Act. When OPM failed to appeal by the December deadline, Kozinski held that his prior rulings had become conclusive and binding against OPM.

"OPM's refusal to give their analysis — even informally — is the most telling. If they are confident Judge Kozinski is wrong, why didn't they tell us, and him, why they think so?  Simply defying his orders is a slap in the face to Karen and the entire LGBT community and bizarrely disrespects the judiciary.  At a minimum, federal courts have the power and responsibility to end discrimination against their own employees.  The whole point of the court's EDR tribunal is to give judicial employees the same meaningful recourse as other federal employees. OPM has said nothing to suggest the Chief Judge's reasoning on this point is mistaken," Pizer added.

The lawsuit asks the federal district court to order OPM to rescind its instruction to Golinski's insurer, Blue Cross/Blue Shield, not to enroll Cunninghis in Golinski's family health insurance plan so the coverage for Cunninghis can begin.

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Even with strong public support and plunging military opposition, repeal of DADT may fall victim of dysfunctional DC politics

Politico reports that progressive are "growing increasingly worried over the lack of a detailed White House road map for passing a repeal" of Don't Ask, Don't Tell "and that without such a road map, repeal will end up in the same kind of Senate gridlock that hobbled health reform." 

This despite the fact that "on Monday, a Military Times poll often used to highlight the uniformed military’s resistance to repeal was updated, revealing a sharp drop-off in opposition to the repeal from 65 percent in 2004 to 51 percent now. A Quinnipiac University nationwide poll released Wednesday found that two-thirds of Americans think the policy is discriminatory."

Rational policy decisions, though, can't be expected from weak-kneed Democrats, a recalcitrant Pentagon, or Republicans reluctant to abandon a reliable wedge issue.  As Politico puts it, "memories are long on Capitol Hill, and Democrats remain skittish about provoking a culture war, even if the issue could motivate their own depressed liberal base. For his part, [defense secretary Robert] Gates, who has expressed concern about how the repeal would affect frontline troops, has called for a go-slow approach, including a review of the impact a switch would have on units in the field."

Despite Obama's pledge to repeal the policy, it remains unclear how truly committed he is to anything more than rhetoric.  A White House spokesman tells Politico, “The timing of when Congress acts is up to Congress.”

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Vanderbilt Muslim chaplain says that gays should get the death penalty

See the video, along with the university's response, here.

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Repealing Military Ban Could Boost Gay-Rights Movement

Check out the UI News Bureau story here by blog editor Sara Benson.  In the story, I mention that there is a possible parallel between the civil rights movement and the gay rights movement and that repealing DADT could the impetus for more rights (such as employment non-discrimination on a federal level).

Separate showers? Exploring the reasons behind the Pentagon's slow-walking of the DADT repeal

NPR explores why the Pentagon claims it will take a year to study the impact of ending discrimination against gay soldiers.  An opponent of ending the ban, a former commandant of the Marine Corps, appears to admit that the much-cited problems of "morale" and "unit cohesion" are not about gay soldiers per se, but rather about the reactions to gay soldiers by troublesome homophobes in the ranks: "What you would see is personnel turbulence," he says. "There would be some who would resist it very actively, and you have to deal with them. You might have good troops who say, 'I'm just not going to live in that barracks with him,' and then you have to decide what to do."

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CA bill would underscore distinction between civil and religious marriage

Our colleague Ruthann Robson at Conlawprof Blog reports on a bill introduced in California that would "divorce religion from marriage under California's statutes."  According to the Bay Area Reporter, the bill seeks to emphasize that faith leaders do not face penalties if they refuse to marry same-sex couples. The legislation also clarifies that any church that does not sanction same-sex marriages would not lose its tax-exempt status. 

Shouldn't all this really be apparent already?  The difference between civil and religious marriage usually seems lost mostly on those who cite religious objections for opposing same-sex marriage.  It remains to be seen whether the bill will do anything to deter the misrepresentations about religion and marriage that opponents of marriage equality steadfastly propound.

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Williams Institute/UCLA law review conference on sexuality and gender law

The Williams Institute at UCLA Law School, together with the UCLA Law Review, will present its 9th annual conference, this one titled "Sexuality and Gender Law: Assessing the Field, Envisioning the Future," Feb. 19-20.  This year's conference features a truly all-star lineup of speakers and panelists.  Admission to the conference is free, though a charge applies for participants seeking CLE.  Here is the conference description:

Both in scholarship and in judicial opinions, issues related to sexuality and gender constitute one of the most dynamic and vibrant fields in American law. Yet there has been no sustained examination of the field itself and of its importance to constitutional theory more generally. This conference will bring together leading scholars from both inside and outside the field to reflect on how sexuality and gender has changed the law, and how the field itself is likely to change.

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Reproductive and Sexual Rights Conference at NYU Feb. 12

More information here.

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Whittier Study Abroad Program

View the attached flier regarding Whittier Law School's Sexual Orientation and the Law Curriculum as part of the Summer Abroad Program in Santander, Spain.

Download LGBT Pamphlet information 2010-1

Color commentary on the DADT hearing and a short history of gays in the military

The Washington Post's Dana Milbank provides insight on yesterday's hearing into Don't Ask, Don't Tell.  Meanwhile, TIME offers a brief history of gays in the military.

The NYT piece on the Senate hearings yesterday shows that 1) chairman of the joint chiefs Mullen (who was originally appointed by President Bush) caught everyone by surprise with his unambiguous position that DADT is harmful and should be ended; 2) nonetheless, Defense Secretary Gates seems determined to slow-walk any change in the policy; and 3) John McCain has flip-flopped and abandoned his earlier pledge to follow the advice of military leaders like Adm. Mullen.

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