July 11, 2008
Mass. Supreme Court says Goodridge does not apply Retroactively to Recognize Benefits of Marriage
The Supreme Court of Massachusetts ruled yesterday that the Goodridge decision (striking down same sex marriage prohibitions as unconstitutional) does not apply retroactively to permit courts to give couples the recognition of marriage. Charron v. Amaral, 2008 WL 2672967 (Mass. July 10, 2008). The case began when one member of a loving relationship developed breast cancer. Her partner brought the claim for loss of consortium stemming from medical malpractice.
In Charron, the Supreme Court was called upon to decide whether a same sex couple could benefit from "marital rights recognized by Goodridge, including the loss of a spousal consortium, . . . retroactively" if the couple "can demonstrate that they would have been married when the cause of action for personal injuries on behalf of one of them accrued had the Commonwealth recognized such a union?" Id. at *1.
The answer? No. The court emphatically states that "[i]t is obvious that Goodridge was intended to apply prospectively . . . ." Id. at *4.
In a concurring opinion, Chief Justice Marshall takes issue with the characterization of Goodridge as a "prospective" decision. In fact, it was a delayed decision--meant to give "deference" to the legislative branch, rather than a prospective decision as the majority claims. Id. at *5 (Marshall, C.J., concurring). The more interesting part of the concurring opinion stems from Marshall's discussion of the policy reasons for prohibiting the requested relief. "Granting such relief would create in effect a common-law or de facto quasi marital status that would promote litigation, permit judges to select from among marital benefits to which quasi marital couples might or might not be entitled, create uncertainty in the private as well as the public sphere about who is (or was) quasi married and for what purpose, and undercut the Legislature's role in defining the qualifications and characteristics of civil marriage." Id. at *6 (Marshall, C.J., concurring).
This argument is rather interesting for two reasons:
(1) Don't judges make these kinds of determinations all the time? For instance, in common law marriage states, judges look to factors (such as whether the couple lived as a married couple) to determine whether or not they are legally married despite the fact that they never filed for a marriage license.
(2) Would this really create a problem prospectively? The plaintiffs asked for the court to recognize a "marriage" retroactively under the new marital laws of Massachusetts because they could not marry in the past. In fact, the couple applied for (and received) a marriage license when they could do so. Would this really create problems for other types of relationships? Or would it simply recognize the fact that this loving couple was for all purposes (other than for state recognition) married all along?
Granted, in any case, permitting the claim would raise separation of powers issues. As the concurring Justices point out, the court did not create same sex marriage rights in Goodridge. That job was left to the Legislature. Hence, I do agree with the last part of the quote above--recognizing this relationship could "undercut the Legislature's role in defining the qualifications and characteristics of marriage." Id. at *6.
April 11, 2008
Obama on LGBT Issues
The Advocate recently interviewed Obama on LGBT Rights issues. Among other things, he said that if he is elected, he expects to be able to eliminate "Don't Ask, Don't Tell" and help pass the ENDA.
However, he notes that he thinks it would be politically unfeasible to include gender identity in the bill.
Importantly, he mentioned that he would like to see equal federal benefits for civil unions. This would be a major step forward, but would be difficult to do because it would require a repeal of DOMA.
You can read the full interview at Advocate.com.
April 09, 2008
SSRN Sexuality and the Law Abstracts
For those interested in scholarly articles relating to sexuality and the law, you might consider taking a look at the SSRN Sexuality and the Law Abstracts. Nan Hunter explains that the "goal for the series is that it will become an interdisciplinary forum for posting completed works and works in progress that concern legal and social regulation of sexuality and expressions of sexual or gender identity, including not only minority forms but also critical assessments of the institutions and practices which construct dominant sexual identities as well."
March 20, 2008
Interesting Article: Queer Teens and Legislative Bodies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws
MIchael Higdon posted an interesting Article on the SSRN network that you might enjoy. It discusses the implications of statutory rape laws for gay adolescents. Specifically, Michael points out that many states have made exceptions for two youngsters who engage in sex consensually. However, many of these exceptions are limited to heterosexual activity.
Here is the abstract:
Most states make an exception to their
statutory rape laws for sexual acts involving an adolescent victim, who
is below the age of consent, when the defendant is close in age to the
victim (i.e., generally no older than three or four years). However, a
few states explicitly limit such exceptions (commonly referred to as
Romeo and Juliet exceptions) to only those situations involving teens
who are of the opposite gender. Thus, adolescents in these states who
have sex with someone below the age of consent, and who are also the
same gender as the defendant, cannot avail themselves to the exception.
As a result, these teens are faced with felony convictions, large fines and mandatory sex offender registration - penalties that would not attach had the victim been the opposite gender. My article argues that such disparate treatment is not only cruel, but is also invidious discrimination that violates the Equal Protection Clause given that these laws serve primarily to stigmatize LGBT adolescents, a class of individuals that is already one of the most stigmatized and at-risk groups in American society.
-From SSRN, Michael J. Higdon, Queer Teens and Legislative Bodies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws (2008).
February 25, 2008
Williams Project Summer Fellowships
Calling all law students interesting in Sexual Orientation and the Law issues.
The Williams Institute at UCLA Law School will award two $5,000 grants to current law school students or recent graduates.
The Gleason/Kettel scholarship will allow you to work with a scholar or organization on LGBT related legal issues.
Applications are due by March 24, 2008.
January 28, 2008
Disrespecting Family Mourning Ledger's Death Is Despicable
Sorry folks. I know that this site is generally reserved for only law-related topics, but I just had to take a moment here to respond to all of the hate-speech surrounding Heath Ledger's death.
If you haven't heard it (thankfully), one particular radio host mocked the death in light of the actor's portrayal of a homosexual cowboy in Brokeback Mountain.
First, is it appropriate to mock anyone's death? No. Is the death of a young actor any more devastating than the death of any other young adult? No. However, it is also not appropriate, in either instance, to mock someone's death.
Second, Heath Ledger was an actor. Any individuals who choose to picket his funeral (another heinous example of hatred) because of a single role that he played in a movie obviously do not understand that actors play many roles. Some roles are reflective of who they are and what they believe and some are not. Ledger just recently played a villain in the Batman series--should we defile his memory because he was "evil"?
Third, even if Ledger took the Brokeback role because he endorsed the message of the film and you, personally, find the message offensive-- let him rest in peace. This brings me back to point number 1--it is not appropriate to picket at a funeral. Even if you do not respect Ledger or his views, can you at least respect the fact that his family is mourning his death? He is survived by his parents, a sister, and a young child. Let them honor his memory in peace.
Failed Attempt to Impeach Judge Who Ruled in Favor of Gay Marriage
A State district court judge (Robert Hansen) ruled that Iowa's DOMA violated the Iowa constitution in Aug., 2007. The decision was stayed pending appeal to the State Supreme Court after just one couple was officially married.
Now, a conservative organization seeks to compel the state legislature impeach Judge Hansen and has filed petitions with over 6,000 signatures with the Iowa legislature. However, both houses of the state legislature are controlled by Democrats, who, reportedly, state that they have no intention of impeaching the judge. See Article in 365 Gay.com. The Iowa Constitution states that a judge may be removed for good cause by the State Supreme Court only on recommendation by a commission or by impeachment of the legislature--not due to the recommendation of the public (or the actions of one conservative group, for that matter).
January 22, 2008
Chicago Judge Refuses to Waive Transgender Woman's Filing Fee in Name Change Petition
A transgender woman is currently asking the Illinois Supreme Court to order Will County Chief Judge to permit her to file a name change petition without filing costs. The woman, who is indigent, wishes to change her name to "reflect [her] identity." Her appeal to the Supreme Court asserts that the judge "told her the name change was 'something that she wanted, not something that she needed,'" and therefore denied her request. See Chicago Tribune Article.
However, according to Illinois law, a judge cannot deny an indigent's petition for a waiver of filing costs without providing a specific reason, in a written order, for the denial. 735 Ill. Comp. Stat. 5/5-105(d).
The appeal filed in the Illinois Supreme Court asks the high court to order the judge to follow the Illinois statute cited above.
If the allegations are true, the judge violated the Illinois statute by failing to file the required written order specifying why he denied the request. However, it also demonstrates the judge's misunderstanding of transgender individuals. For most individuals, a name change is not a necessity. We might change our name just for fun (I know a guy who changed his legal first name to "Sloth", for instance). But, for a transgender individual, a name like Matthew could prevent her from living as a woman. This is not merely "something . . . she want[s]", but, rather, it is truly necessary for her to live as a woman. It is a form of liberty, if you will. The ability to decide who she is and live accordingly.
January 06, 2008
Fed. Dist. Ct. Denies Motion for Summ. Judg. in Excessive Force Claim Brought By Lesbian Bus Passenger
This case does not involve spectacular facts, nor does it involve intricate, complex issues of law. The reason I decided to "blog" about this particular case stems from the pervasiveness of such behavior in our communities and everyday lives. It seems that LGBT individuals face discrimination and hateful words on a daily basis. This case, however, demonstrates that some of these "everyday incidents" of prejudice may subject the actor to civil liability.
The case stems from a lesbian couple's attempt to catch the bus. Johnson v. Sakoski, 2008 WL 53774, No. 06-CV-13904 (E.D. Mich. Jan. 3, 2008). The driver, defendant Sakoski, passed them by three times and finally allowed them to enter the bus. Id. at *1. When the couple finally was able to enter, the plaintiff asked why the driver kept on passing them by. According to the plaintiff, the driver responded that "he did not have to cater to lesbians." Id. A conversation ensued as the plaintiff and her significant other were about to exit the bus. The couple continued to try to explain that the driver had an obligation to pick them up, regardless of their sexual orientation. According to the plaintiff, the driver then pushed her off of the bus, injuring her right knee. When the plaintiff arrived at her home, she called an ambulance and was treated for "musculoskeletal strain" in her leg. Id. at *2. She also suffered from emotional distress and sought counseling for depression as a result of the incident. Id.
The Wayne County Prosecutor's Office pursued a criminal charge for assault and battery against Sakoski, but the jury found him not guilty. Id. The plaintiff sued both Sakoski and the public transportation authority SMART. The court granted SMART's motion for summary judgment, dismissing the plaintiff's state-law claims for intentional infliction of emotional distress and gross negligence in hiring and supervision. Id. at *8-9.
Significantly, the court denied defendant Sakoski's motion for summary judgment on the Section 1983 excessive force claim. Id. at *7. Viewing the evidence in a light most favorable to the plaintiff, the court found that Sakoski's action in pushing her off of the bus was not a "good faith effort to maintain or restore discipline", but rather an intentional, malicious and sadistic act. Id. Furthermore, the act was committed "for the very purpose of causing harm." Id. Furthermore, the court explained that even if the defendant's actions did not cause extensive physical injury to the plaintiff, she might also be able to raise an excessive force claim on the basis of her emotional harm. Id.
December 11, 2007
LGBT Law for the Greater Community
If you are interested in spreading the word about LGBT legal issues to family members, friends, and your community (even non-lawyers), you might want to consider recommending a new book titled "Everyday Law for Gays and Lesbians (and Those Who Care About Them)" by Anthony C. Infanti, Professor of Law at the University of Pittsburg School of Law (Paradigm Publishers).
The back cover of the book contains accolades from Pat Cain (Inez Mabie Distinguished Professor of Law at Santa Clara University), Robin West (Professor of Law at Georgetown University Law Center) and Kim Fountain (Director of the National Coalition of Anti-Violence Programs).
December 07, 2007
Young Iranian Man Executed for Alleged Sex Crime Committed When He Was Just 13
Makvan Mouloodzadeh was executed on Dec. 5 for allegedly committing acts of anal rape (sodomy) with another young boy when he was only 13 years old.
At the trial, the witnesses recanted pre-trial testimony because they were made under duress and Mouloodzadeh stated that his confession was coerced. Despite the lack of witnesses, he was convicted and sentenced to death on June 7, 2007. His conviction was upheld on appeal by the Supreme Court.
He was executed despite demonstrated international outrage (led by the International Gay and Lesbian Human Rights Commission, Amnesty International, the Human Rights Watch, and other well known groups), through a letter writing campaign. Due to this international pressure, the Chief Justice of the Supreme Court overturned the initial affirmation of the conviction. "In his November 10, 2007 opinion (1/86/8607), the Iranian Chief Justice described the death sentence to be in violation of Islamic teachings, the religious decrees of high-ranking Shiite clerics, and the law of the land." See IGLHRC Press Release "Iran: Young Man Executed for Alleged Sex Crime"
However, the "Special Supervision Bureau of the Iranian Justice Department" reinstated the conviction and he was subsequently executed at the age of 21.
This is an outrage.
The "evidence" presented at this trial could not possibly have been sufficient to convict the defendant of a criminal act. According to the journalist who covered the trial, "[t]he judge did not bother to order medical examinations to see if rape had taken place, nor did he bother to order medical examinations to see if torture of the witnesses had taken place . . . The judge's verdict of guilty, and his sentence of Makwan to death, was based purely on his personal speculation[.]" See Gay City News coverage (12/06/07).
Even if the defendant in this case committed non-consensual sodomy with other children (which is not at all clear due to the fact that none of the witnesses would testify at trial), and the government could prove that he committed the crime (also not clear that this occurred here), how can a 13 year old be sentenced to death? International law prohibits imposing the death penalty against children. See IGLHRC Action Alert. Sentencing this child to death, especially based on the circumstances of this particular "trial" is unconscionable and constitutes the most extreme form of cruel and unusual punishment imaginable. This is just a speculation on my part, but I would guess that if this child had been accused of raping a young girl, he would not be punished in this manner. It seems that this young man, just 21 years old, was executed because he was gay.
December 05, 2007
ABA forms Commission to address Sexual Orientation & Gender Identity
The ABA has formed a commission to address sexual orientation and gender identity issues. The commission "will work to eliminate bias and discrimination against persons of differing sexual orientations and gender identities in the legal profession, the justice system and society." See ABA News Release.
The commission's first meeting took place Nov. 30-Dec. 1.
November 29, 2007
Study Sexual Orientation and the Law in Amsterdam
This post is directed to law students, but please spread the word:
Study "International Perspectives on LGBT Rights at the University of Amsterdam" this summer.This program is co-sponsored by the Williams Institute & Whittier Law School.
Students can earn up to 6 units of law school credit through this ABA approved program.
The faculty involved in the project (as copied directly from the Williams Project announcement) include:
▪ Matt Coles, Director of ACLU’s Lesbian and Gay Rights Project
▪ Jenny Pizer, West Coast Legal Director, Lambda Legal
▪ Professor Holning Lau, Hofstra Law School
▪ Professor Elizabeth Glazer, Hofstra Law School
▪ Brad Sears, Executive Director of the Williams Institute
▪ Professor Russell Robinson, UCLA School of Law
▪ Professor Paula Ettelbrick, Executive Director, International Gay and Lesbian Human Rights Commission
▪ Professor Jon Heilman, Whittier Law School
▪ Professor David Kaye, Whittier Law School
▪ Professor Judith Daar, Whittier Law School
▪ Professor Seval Yildirim, Whittier Law School
"For additional information regarding the program, students should email Professor Heilman at email@example.com or visit Whittier Law School ’s web site at www.law.whittier.edu or click here for updated information by early 2008."
November 20, 2007
Quench Blog Recognizes Trans Day of Remembrance
FOR IMMEDIATE RELEASE Quench Blog recognizes Trans Day of Remembrance by hosting a conversation on the blog today. Please visit http://quenchzine.blogspot.com/2007/11/2007-trans-day-of-remembrance.html to read the personal stories and reflections by members of the trans community and their allies. "We remember the deaths and think about how to keep trans work and work for the trans community alive." Today, on Trans Day of Remembrance 2007, do not forget to stop by Quench at http://quenchzine.blogspot.com for some fresh commentary on the evolving meaning and messages associated with trans day of remembrance in trans and ally communities. About Us: Quench is a self-published magazine and blog, created by Harvard students, alums, friends and allies who wanted a forum to discuss their experiences and ideas. Quench deals with issues of sexuality, race, gender, class, religion, politics and anything else our writers are thinking about. We have over 30 bloggers who write under pseudonyms, from a variety of diverse backgrounds and provocative perspectives. Feel free to leave comments, or contact us at firstname.lastname@example.org.
November 13, 2007
Montgomery County, Maryland Transgender Bill
The County Council for Montgomer County, Maryland is considering a bill granting housing and employment protection to transgendered individuals. However, it also included a provision that would permit transgendered individuals to use public restrooms. Those opposing the bill were up in arms about this provision, claiming that it would result in "indecent exposure." See the Washington Post's Coverage of the issue (Nov. 11, 2007; Transgender Bill May Be Close to Passing). The bill's sponsor stated that she will pull the restroom language and thinks that the bill will pass without it. However, the broad language of the rest of the bill may be read to include the right to use public restrooms nonetheless.
This brings up an important point. Why are restrooms such a hot button issue? It seems that generally people are really offended by the idea of a male to female transsexual using the women's restroom when she has not yet had genital surgery. I have a litany of responses to this, but I will limit my comments to three:
(1) As I pointed out in an earlier blog post, women's restrooms generally have enclosed stalls. Thus, how would anyone suffer from "indecent exposure"? Also, even in male restrooms, there is generally at least one stall, so the same logic applies.
(2) Most male to female transsexuals would rather not have anyone see their "male" parts. Why would any transsexual individual "flash" her genitalia at the general public? In my view, this kind of concern is really a front for a deep seated fear of those who are different. In fact, it is similar to comparing transgendered individuals with sick individuals who like to expose their private parts in public to young children. It is an unacceptable comparison.
(3) Why don't we just add additional "family" or "gender neutral" single stall restrooms to public buildings? In this manner, we will never have the issue of forcing a transgendered individual to pick whether he feels like a male or a female today. Not to mention the fact that intersex individuals are put to the same task as well.
October 30, 2007
Sexual Orientation Law Teaching Fellowship
The UCLA-based Williams Project offers a two year teaching fellowship for recent law grads interested in becoming scholars/law professors in the area of Sexual Orientation and the Law. Interested applicants should submit an application by December 1, 2007.
The Law Fellow will teach at least two courses, receive mentorship for scholarly pursuits, assist with Williams Project events, etc.
This is a great opportunity for a recent graduate to gain valuable teaching/scholarship experience at a wonderful law school.
Additional information can be found on the Williams Project website.
October 17, 2007
L.A. Queer Studies Conference--Oct. 19-20, 2007
The Queer Studies Conference is free and open to the public. It will take place at the UCLA campus on Oct. 19-20.
This UCLA website contains additional information.
The conference will include presentations about queer theory, political theory, immigration policies, military issues, and more.
October 08, 2007
California Tax Exemption for Domestic Partners OK
In a recent case decided on Oct. 2, 2007, a California Appellate Court upheld the decision of a trial court ruling that laws permitting tax benefits for domestic partners constitutional. Strong v. State Bd. of Equalization, 2007 WL 2834475 (Cal. Ct. App. Oct. 2, 2007).
Apparently, the rule permitting the extension of a spousal transfer of property tax exclusion (adopted by the California legislature in 2005, offended the local county tax assessors, who sued claiming that the law was unconstitutional. Id. at *1.
As the law was justified by a rational basis, the court upheld the tax protection afforded domestic partners under California law. Id. at *7.
The most interesting part of the case is the fact that the tax assessors felt it was important to bring this particular lawsuit. It demonstrates how adamant some opponents of gay rights are in trying to limit opportunities for same sex couples. The law was challenged as hinging on "social policy"--one that, apparently, was not well-regarded by the plaintiff tax assessors.
September 18, 2007
Hate Crimes Quandary--a gay defendant?
In today's New York Times, the press points out that a defendant currently facing trial for a hate crimes act (killing a gay man based on sexual orientation) claims that he, too, is gay. New York Times, Section B (Sept. 18, 2007).
This raises an interesting question--if the defendant is actually gay, should that matter? In the usual hate crime scenario, the defendant is accused of having hurt or killed a person based specifically on the victim's race, sexual orientation, etc. These types of crimes tend to carry higher penalties. We tend to think that a crime based on these factors is a more heinous type of crime--similar to lynchings and other race-based killings from years past.
However, does it negate "intent" for the hate crime if the person charged falls into the protected class as well? (Note that the NY Hate Crimes Act requires that the person "intentionally selects" the victim based on the protected class. N.Y. Penal Law Section 485.05 (McKinney 2007)).
Is it possible to be a member of a protected class (for hate crimes purposes) and hate that class at the same time? Probably. It seems to me that membership in the protected class should not be an "automatic" nullification of intent. Here's why:
Racial tensions run deep. In Rwanda, for example, members of the same general "race" (African or Rwandan) further broke down their affiliations into sects and killed members of other sects based on race or group-affiliation. Could someone be a member of the gay community, yet target other gay people? Unfortunately, yes.
Is this the type of crime that was meant to be punished by Hate Crimes Legislation? That is a more difficult question, it seems to me...
I welcome comments here as I continue to research and think about this question...
August 30, 2007
Nothing Worse than Being Queer
Republican Senators have already begun to call for the resignation of Senator Larry Craig (R-ID) after he pled guilty to disorderly conduct in order to settle a charge involving alleged sexual activity in a men's restroom at the Minneapolis airport. This is an important indication that the obsession with lesbian/gay identity that the dissent identified in Bowers v. Hardwick, 478 U.S. 186, 200 (1986) (Blackmun dissenting), continues to motivate many public officials, especially Republicans.
Craig's alleged sin is so severe that the mere allegation of it alone is sufficient to produce calls for his resignation from other Republicans. Many of these are undoubtedly the same Republicans who have resolutely defended Alberto Gonzalez throughout the scandal involving the politicized firing of U.S. Attorneys. Repeated allegations of abuse of legal authority by the Attorney General is not enough to overcome the partisan loyalties of the Republican leadership, but make one gesture to an undercover cop in a men's room, and it's all over.
This is paranoid heterosexual supremacy (if you'll forgive the redundancy) in action. The result is a warping effect on the law.
During my LGBT legal issues course this fall, I will have my students read Elizabeth Erin Bosquet, Contextualizing and Analyzing Alabama’s Approach to Gay and Lesbian Custody Rights, 51 Ala. L. Rev. 1625 (2000). Bosquet begins the article by reporting on Ex parte D.W.W., 717 So. 2d 793 (Ala. 1998), where the Alabama Supreme Court upheld the trial court's grant of custody of two children to their father.
According to the trial court, the father had a history of serious alcohol abuse and violence. He had threatened to kill the mother, the children, and others. He had put his infant son into a clothes dryer, totalled his car while his 23-month-old daughter was riding in the car wearing no safety belt, and returned the children from visits with flea bites and scabies. Bosquet at 1625-26; see also, D.W.W., 717 So. 2d at 797-98 (Kennedy dissenting, listing 11 items from the trial record indicating father's lack of responsibility and of parenting skills).
What does a mother have to do in order to be a worse parent than this father? Enter a lesbian relationship.
According to the Alabama Supreme Court, "Even without this evidence that the children have been adversely affected by their mother's relationship, the trial court would have been justified in restricting R.W.'s visitation, in order to limit the children's exposure to their mother's lesbian lifestyle. When a noncustodial parent is involved in a continuing homosexual relationship, restrictions on that parent's visitation rights have been widely held to be proper. Carroll J. Miller, Annotation, Visitation Rights of Homosexual or Lesbian Parent, 36 A.L.R. 4th 997 (1985)." D.W.W., 717 So. 2d at 796.
In 1999, a soldier named Barry Winchell died in his sleep at Fort Campbell Army base when one of his fellow soldiers bludgeoned him to death with a baseball bat. The trauma surgeon in Nashville who tried to save Winchell's life told me that his brains were literally lying on the table next to his head when she got to him. Why did Winchell's attacker bludgeon him to death? Because Winchell was known to be dating a transgender person in Nashville, and Winchell had bested him in a fist fight the night before, and the attacker wasn't going to let any faggot get away with kicking his ass.
By all accounts, Winchell was an outstanding soldier with considerable promise for a military career. His attacker almost didn't become a soldier at all because of arrests before he enlisted.
Given the current exclusion of openly lesbian/gay persons from the U.S. military, one must infer that persons with arrest records are necessarily better soldiers than any openly lesbian or gay person.
These are only the obvious examples that I can come up with off the top of my head. Anyone who would make some sense out of bizarre legal and policy choices involving sexual orientation must begin by understanding the principle that, for many judges and legislators, literally nothing could be worse than being lesbian/gay, and anyone who admits to such identity is therefore a choice target for all manner of discrimination.