Sexual Orientation and the Law Blog

High court upholds public law school's non-discrimination policy against religious challenge

The Supreme Court Monday upheld a policy at a California law school that groups receiving campus funding must accept "all comers" -- that is, that they may not discriminate on the basis of race, religion, sexual orientation or other status or belief. The Christian Legal Society at the University of California Hastings had filed suit after the university revoked its recognition because the group barred membership to "unrepentant homosexuals."

While upholding the law school's policy, the Court remanded to the 9th Circuit an assertion by CLS that Hastings applied its non-discrimination policy selectively in this case.

Our colleague Ruthann Robson analyzes the decision over at ConLawProfBlog.

Lambda Legal and Gay and Lesbian Advocates and Defenders (GLAD) had filed a friend of the court brief arguing that CLS's exclusion of students who engage in same-sex sexual activity without remorse excludes gay people by definition.  "We're extremely pleased the Court has found that discrimination is discrimination, however you try to package it," said Jon Davidson, Legal Director of Lambda Legal. "CLS was attempting to draw a distinction between status and conduct. But when an organization has a membership requirement that one must believe conduct central to one's identity is immoral, that's the same thing as excluding people for who they are. It's wrong of CLS to expect students to fund a group that wouldn't have them as a member. The Court wisely rejected CLS's attempt to obtain what the Court recognized as 'preferential, not equal treatment' under the school's rules applicable to all other recognized clubs."

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Sen. Byrd was powerful foe of same-sex marriage

Legendary West Virginia Sen. Robert Byrd, who died this morning, had at best a mixed record on civil rights.  He was once a member of the Ku Klux Klan (something for which he later apologized) and filibustered against the 1964 Civil Rights Act (though he later supported civil rights measures once he became a Senate leader).  He remained to the end, though, a powerful foe of marriage equality for gays and lesbians, taking to the Senate floor on at least one occasion to give an emotional, somewhat doddering speech on a topic for which his age and life experience obviously had not prepared him.  In 2006, he was one of only two Democrats (the other was Ben Nelson) to vote in favor of a constitutional amendment that would have banned same-sex marriage.

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Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines

Courtney Joslin, Acting Professor at the University of California Davis College of Law, just posted anew Article to SSRN entitled "Travel Insurance:  Protecting Lesbian and Gay Parent Families Across State Lines." 

Abstract:    Until recently, when a lesbian couple had a child through artificial insemination, only one member of the couple was considered the legal parent of the resulting child at the moment of birth. Today, in a small but growing number of states, this is no longer the case. Instead, in this small group of states, from the moment of birth, both members of the couple are treated as legal parents of a child born to the couple through artificial insemination. While this advancement in state law is tremendously important for many children, the resulting protections are extremely tenuous. These children are assured protection only so long as they and their families remain in one place, never crossing state lines. This essay explores why this legal vulnerability exists and offers a proposal for mitigating this potentially harmful state of affairs.

In dispute with Philly, Boy Scouts seek to keep special privileges despite anti-gay discrimination

NPR reports on a trial set to begin soon that pits anti-discrimination and First Amendment rights of association:

It's been two years since city officials in Philadelphia threatened to evict the local chapter of the Boy Scouts from the city-owned office space that the group has used rent-free for decades. Officials say the Scouts' policy against openly gay members violates local anti-discrimination laws. The Boy Scouts sued, charging the city with violating the group's constitutional rights

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State Dept. liberalizes passport policy for transgenders

The State Department has introduced new policy guidelines on changing the sex marker on American passports.  When a passport applicant presents a doctor's certification that he or she has undergone treatment for gender transition, their passport will be updated to accurately reflect their sex.  Sex reassignment surgery is no longer required to change the gender on an American passport.  More information here from the Transgender Legal Defense and Education Fund, and here are the new policy guidelines.

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Same-sex marriage fizzles as an issue in Iowa

Last year, bellwether Iowa became the first and still only Midwestern state to authorize same-sex marriage.  Despite predictable conniptions from social and religious conservatives, the NYT reports that the issue just hasn't been very important in the state's politics this year.

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Pew examines conscience vs. civil rights: Are health care workers obligated to treat gays and lesbians?

The Pew Forum on Religion and Public Life examines a question around which there's been increasing controversy:

Should doctors, pharmacists and other health care workers have the right to refuse to provide services that conflict with their religious beliefs? Until recently, the debate over "conscience protections" for health care workers centered largely on abortion and birth control. But in the past few years, new cases have emerged that have raised questions about the tensions between individuals' rights of conscience and the need to protect certain groups against discrimination, notably gays and lesbians. These new cases involve health care workers -- in one case doctors at a California fertility clinic, in another case a graduate student in Michigan studying to become a counselor -- who refused to treat gay and lesbian patients because they felt that doing so would compromise their core religious beliefs. While religious organizations and institutions are exempt from certain nondiscrimination laws, there is debate over whether private individuals and businesses should have similar rights. 

To explore this issue, Pew features an interview with professors Ira "Chip" Lupu and Robert W. Tuttle, both of George Washington University Law School.

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How the Prop 8 court can balance justice and judicial limits

In an issue brief for the American Constitution Society, titled "The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role," Rebecca L. Brown, Newton Professor of Constitutional Law at the University of Southern California Gould School of Law, discusses Perry v. Schwarzenegger, in which the United States District Court for the Northern District of California is considering whether the United States Constitution requires states to permit marriage between individuals of the same sex.  

While strong arguments may very well exist for a broad ruling, Professor Brown suggests that the case might also lend itself to a more modest resolution of the claims raised. Proposition 8 was a ballot initiative that originated as a reaction to a California Supreme Court decision interpreting California's Constitution as requiring the state to permit same-sex couples to marry; Proposition 8 subsequently added to the California Constitution a provision that "[o]nly marriage between a man and a woman is valid or recognized in California."  After extensive analysis of case law, the author concludes that the United States Constitution's Equal Protection jurisprudence dictates that Proposition 8 be struck down, since "[a]ny legislation must have a public purpose other than stigmatization," and "no public purpose that could plausibly be served by this retroactive reduction in status has been offered to dispel the usual inference that any act of stigmatization is a violation of the state's obligation to legislate impartially."

While a decision along these lines would not touch upon the breadth of the fundamental right to marry, Professor Brown suggests that this modest resolution of Perry "would fulfill the best expectations we have of the federal judicial role, to resolve the case on strong, unassailable, time-honored, and yet narrow, grounds."  As the author argues:

A ruling of the kind I will advocate would not be an act of minimalism, but neither would it be an act of maximalism.  Rather, this would be an exercise in judicial optimalism -- using good judgment to determine just how much judicial intervention is necessary to vindicate the core and essential purposes of the judicial role, without unnecessarily diverting the course of more widespread social and political movements that are at the heart of healthy and lasting legal change.

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