Tuesday, June 29, 2010

In Other Gay News...

- Confirmation hearings began yesterday for Supreme Court nominee Elena Kagan. SCOTUSblog has some truly excellent issue briefs covering major topics likely to be addressed in the hearings, including DADT. [SCOTUSblog]

- Monday was also Justice Stevens' last day on the Court. He read a farewell letter from the bench. [Blog of Legal Times]

- West Virginia Senator Robert Byrd, described by some as a "powerful foe of same sex marriage," died yesterday. [Sexual Orientation and the Law]

- More on Twin Cities Pride, as the organization announces it may move the event next year to a private venue so it won't have to tolerate anti-gay preachers like Brian Johnson (as I said here). [The Advocate]

Monday, June 28, 2010

Supreme Court Rules in Christian Legal Society v. Martinez

The Supreme Court handed down the last of its opinions for the term today, including a decision in Christian Legal Society v. Martinez.

The issue in the case was whether a public school (UC Hastings, the law school at UC Davis) could deny funding and recognition to a religious student organization that required its officers and voting members to agree with certain core religious viewpoints, including ones that violated the school's non-discrimination policy (the religious viewpoint at issue - that unrepentant gay sex is a sin). After the school denied the student group funding based on the fact that the group's bylaws violated the non-discrimination policy, the group sued.

This is yet another case from the Supreme Court with an LGBT connection, the other being Doe v. Reed. I blogged earlier that, although Doe v. Reed involved some gay issues, it wasn't actually an LGBT rights case. What about this one?

Some seem to think that Christian Legal Society is, in fact, a "victory" for gays and lesbians (at least that's what the email from the National LGBT Bar Association told me). Additionally, others believe the breakdown of the court in today's 5-4 decision might reflect how the Justices might come out should the Prop 8 trial make its way to One First Street.

I think I'm somewhere in the middle on this one. I tend to agree with Lyle Denniston at SCOTUSblog, who points out:
The bottom line: state college leaders may reserve official status on campus to groups that admit all comers, provided that the policy genuinely seeks and promotes that aim and does not single out any group because of what it believes.
The case has a very narrow holding, and it's not directly about the fact that the Christian Legal Society was excluding members based on their sexual orientation. Even Justice Alito's dissent focuses less on any sort of argument for morality than it does the right to expression entitled to the Christian Legal Society. At the same time, it is an argument that pits freedom of religion against homosexuality. At the very least, this is a major victory in that it upheld a law school policy that refused to allow tuition from gay students or allies from going to a student group that espoused homophobia.

The case that was handed down today that I think is a bigger indicator of future cases, though, is the Second Amendment case, McDonald v. City of Chicago. In McDonald, the Court held in another 5-4 decision that the Second Amendment was incorporated to the states through the Fourteenth Amendment. The potentially important part of the decision for gay rights advocates, though, is that the five Justices that voted to incorporate the Second Amendment did so based on a conservative interpretation of the Constitution, as noted by Steven Calabresi:
Justice Alito’s opinion is also of tremendous importance because it is based on the premis that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them....The McDonald case makes it clear that five justices (Roberts, Alito, Scalia, Thomas, and Kennedy) are now committed to recognizing only rights that are deeply rooted in history and tradition. This is the first occasion on which Roberts and Alito have squarely addressed this issue, and it is also significant because Justice Kennedy, who strayed from the conservative camp when he found a constitutional right to commit sodomy, is now back to signing on to opinions that confine constitutional rights to those that are deeply rooted in history and tradition.
Does McDonald mean that Justice Kennedy has switched camps yet again? Probably not, but it's interesting that he signed onto an opinion from Justice Alito with such strong language as to what substantive due process rights will be recognized by the Court.

A great resource for information and documents in Christian Legal Society is the case's SCOTUSwiki page. Other stories covering the opinion can be found at Althouse, Bilerico, Box Turtle Bulletin, and Leonard Link.

Twin Cities Pride After the Fact

Some follow up on the First Amendment flap surrounding Twin Cities Pride in Minnesota.

First, the federal district court refused to issue an injunction preventing anti-gay preacher Brian Johnson from entering the pride festival, citing Johnson's First Amendment rights. This is a decision that, as I said previously, I agree with - free speech is for everyone, not just people we like or agree with. If you want to regulate speech at your event, rent out a private venue, not a public park. Dale Carpenter comments on the case, with links to the district court's opinion, at Volokh.

And so Brian Johnson and his family went to Twin Cities Pride, brought free Bibles, got followed around by the media, and generally were ignored by most pride-goers. No one got crazy, no one got into a fight, there wasn't even a shouting match that I can find reference to. Just lots of gays and allies, enjoying the weekend. Which, really, is the way it should be.

Quick Follow-Up on Doe v. Reed

The Supreme Court's decision in Doe v. Reed, which I blogged about on Friday, continues to receive attention on the blogosphere. Lisa McElroy at SOTUSblog has a good "In Plain English" explanation of the decision, including this passage, which is similar to what I talked about in my post:
One other note: The Court sided with the state here, which some may view as siding with gay marriage proponents. But that’s not it at all. The Court did not express an opinion on gay marriage in and of itself. It merely ruled on the legal issue before it, an important distinction that will come into play even when cases directly implicating gay marriage eventually make their way to the Court.

In Other Gay News...

Lots of news from this big gay weekend.

- Iceland's Prime Minister Johanna Sigurdardottir married her partner on Sunday, after the country's new law recognizing same-sex marriage came into affect. Which explains all of the volcanic eruptions and economic meltdowns. [Box Turtle Bulletin and The Advocate]

- Chile is also moving on laws to recognize same-sex civil unions. [Box Turtle Bulletin]

- The Second Circuit held that a police officer could not be held civilly liable for making an unconstitutional arrest when he was picked up by a guy cruising in a park. Because even though the loitering law the arrest was based on had been declared unconstitutional twenty years ago, it hadn't been taken off the books by the legislature, and it wasn't the responsibility of the cop to know that. It may, however, be the responsibility of the city to provide proper training to said cop so that he does not enforce unconstitutional statutes. And so the arrestees suit goes forward. [Leonard Link]

- Nancy Polikoff gives some tips as to how the HHS regulations on hospital visitation can be put into effect in a way that actually makes sense for gays and lesbians. [Bilerico]

- Virginia Attorney General Ken Cuccinelli goes originalist and lets a high school crowd know that gays "would never have been contemplated" by the framers of the 14th Amendment. [The Advocate]

- Esera Tuaolo, a former Minnesota Vikings player who came out in 2002, was arrested for domestic violence and disorderly conduct.

- Paul Waldman talks about the arguments against same-sex marriage - and why they end up being all about straight people. [The American Prospect via Feministing]

- And, as the Prop 8 trial nears its end, the lawyers get more write-ups. This time, it's David Bois' turn. [Salon via Towleroad]

- Soledad O'Brien tackles DADT. [Towleroad]

- Bilerico has a podcast full of gay issues, including Doe v. Reed, DADT, ENDA, and the politics of pride. Happy Monday! [Bilerico]

Friday, June 25, 2010

In Other Gay News...

- In yet another instance of pride events meeting free speech rights, Toronto Pride officials have announced that they will not prohibit a group named "Queers Against Israeli Apartheid" from marching in the parade, as previously announced. [Bilerico Project]

- The European Court of Human Rights held that members of the Council of Europe need not provide equal marriage rights to same-sex couples, although whether some sort of civil union may be required is unclear. [Box Turtle Bulletin and The Advocate]

- Filed under ridiculous: Elena Kagan is now reportedly an "ex-gay." [Towleroad]

- 1L Contracts hypo alert - a D.C. woman is suing her church to recover $250,000 in donations she gave to the church, now that the church has come out in support of same-sex marriage. [Queerty]

Supreme Court Rules in Doe v. Reed - A Big Deal?

The Supreme Court yesterday handed down its opinion in Doe v. Reed, the First Amendment case that asked whether the names of individuals who signed petitions in Washington's Referendum 71, which would put same-sex marriage on the Washington ballot, may be released under the state's public disclosure law.

There have been plenty of stories about the decision, some of which are linked atSCOTUSBlog. SCOTUSBlog's Tom Goldstein also has an excellent summary of the decision, which held 8-1 (with Justice Thomas dissenting) first that referendum signatories do not have a right to keep their identities private. The Court also held (and this is where some other blogs are missing the holding of the decision) that in each situation a court should consider whether the specific circumstances of the given referendum do in fact call for anonymity (when the purpose and effect of the disclosure of the names would be to facilitate harassment). So, are the names of those that signed Referendum 71 being released? We still don't know - the Court remanded that question to the lower courts to apply the test to this particular case.

So what is the impact of this case on gay rights or gay marriage? Quite frankly, I don't see there being all that much. This is, first and foremost, a First Amendment case. The main issue here was whether a state law requiring public disclosure of certain records, including referendum petitions, was subject to First Amendment scrutiny. The fact that the referendum at issue was to put marriage equality up for a vote, and that the individuals whose identities would be disclosed were opposed to marriage equality, is just a side issue that implicates the analysis that will go to the lower courts. The referendum could well have been about medical marijuana or term limits.

So why is the decision such a big deal for LGBT rights? My first reaction - it isn't. The analysis for whether the disclosure of those that signed Referendum 71 would facilitate harassment is unofficially discussed in dicta in the opinion (and outlined by Arthur Leonard here), and will be re-addressed by the lower courts. That analysis will have an effect on how later courts address similar situations, but even then each case will be specific to the facts of that particular time and state.

But on another level there is the feeling that the Supreme Court made the decision today to refuse to allow those who would deny rights to others to hide behind a referendum. And that is important.

So maybe this is more about the sentiment - we finally got a win! Or at least it feels like it.

Gay Parents - Gary and Tony, Wisconsin, and How to Approach Parental Rights

There's a lot of activity lately on the issue of parental rights for gays and lesbians.

Plenty of blogs have been buzzing about Soledad O'Brien's piece last night, Gary and Tony Have a Baby, the latest in CNN's Gay in America series. To be sure, reactions have been mixed. Take, for example, the pieces at Bilerico that are both generally positive and quite critical (largely based on the perpetuation of gay stereotypes). The piece itself raises a lot of issues (including the legal angle of adopting via surrogacy), but I find it encouraging that the issue is being addressed in the mainstream media in a way that (hopefully) will have a positive impact on people's perceptions of the struggles gays and lesbians have to go through to have a child. And I thought the piece itself was well put together, particularly when you consider that its audience isn't really gay couples in New York or San Francisco, but generally conservative people in middle America.

Meanwhile, in not so encouraging news, a Wisconsin appeals court ruled yesterday that same sex partners do not have full parental rights of their adopted kids (the opinion is posted here). The case arose when a lesbian couple, Wendy and Liz, adopted two children. Under Wisconsin law, the women cannot marry, and because they are not married they cannot jointly adopt. So Liz adopted the kids, which became a problem after Wendy and Liz's relationship ended and Wendy attempted to gain some sort of legal recognition of her parental relationship with the kids. The court ultimately refused to recognize Wendy as a parent. The court also refused to address Wendy's Constitutional claims, which argued that Wisconsin law violated the kids' equal protection and due process rights, saying they were "inadequately developed." A fight for another day.

The different ways of looking at gay parenting and adoption issues are highlighted by Susan Appleton in her paper Gender and Parentage just posted on SSRN (via Legal Theory). Appleton takes on how the legal system currently treats parenting rights and adoption issues, and why courts and legislatures should approach these issues from a "diversity approach" - basically, all parties are equal regardless of gender. Appleton contrasts the diversity approach with the "integrated model," which does focus on the biological roles of parents. Ultimately, Appleton argues for the diversity approach, which is a clear step for equality that would make cases like the Wisconsin appeals decision a thing of the past.

This is all a particularly interesting question, though, especially because of the results that come out of the current system of laws. Take, for example, California's presumption that a child that is born to a married couple is the biological offspring of both parents, until proven otherwise. This might make sense when you're dealing with a man and a woman - if the man wants to prove the child is not his, or another man wants to assert parental rights over the child, paternity must be proven. But how do we deal with, say, a lesbian couple that has legally been married in California? They now have a child, and the law presumes that both have full parental rights? Something tells me the answer to that is no, and that the non-biological mom will have to go through adoption proceedings, but I think there's a good equal protection argument to be made that parental rights should, in fact, be assumed for both women (of course, it also raises the issue of what the biological father's parental rights are to the child in that case).

Like I said, interesting stuff. It's frustrating that court decisions like the one in Wisconsin seem to be going against a "diversity approach." Still, I find it encouraging that programs like In America and policies from the Department of Labor (which recently interpreted the Family and Medical Leave Act to allow same-sex parents to take leave to care for a sick child, even if he/she is not legally related to the child, as I blogged about here) seem to be moving in the other direction.

Thursday, June 24, 2010

Of Boy Scouts and Pride Parades

A Philadelphia jury yesterday determined that the city could not evict the Boy Scouts from their city-owned offices because of the Scouts' anti-gay policies (as has been reported as Towleroad and other sites).

Which has spurred Timothy Kinkaid from Box Turtle Bulletin (a great site if you haven't checked it out already) to lament over the fact that the gays "can't even buy a right." I agree with Kinkaid that it's disappointing and frustrating that homophobic preachers want to go to pride festivals and pass out leaflets telling gay people that they are going to hell. I agree that it's maddening when a jury refuses to apply the anti-discrimination laws of a city in a way that makes any logicals sense. But I don't think things are as bad as he makes them out to be.

As I said yesterday, the First Amendment protects speech we might find abhorrent, but that's actually a good thing. In fact, I would go so far as to say that it's one of the reasons we have pride events enough to worry about crazy preachers coming in to rile us up. And while the Boy Scouts case is disappointing, it is heartening to know that it was the City of Philadelphia that attempted to evict the Boy Scouts for their discriminatory practices. And it was eight members of the jury that got it wrong in allowing the discrimination to continue on the taxpayers' dime. We ought to know by now that equality in the courtroom isn't coming from the jury box; it's coming from the bench.

In Other Gay News...

- Australia's new Prime Minister Julia Gillard is against same sex marriage. [Advocate]

- The Department of Labor has interpreted the Family and Medical Leave Act in such a way that will allow same sex parents to take leave to care for a sick child, even if he/she is not legally related to the child. [Leonard Link]

- And in another positive move from the government, Department of Health and Human Services Secretary Kathleen Sebelius has sent a letter to major hospital associations urging them to institute equal rules for same-sex couples when it comes to rights of visitation and power of attorney. [Towleroad]

- The Family Research Council is concerned that conservative gays might be pushing for national handgun concealed carry license reciprocity as a way to further reciprocity for same sex marriage licenses. A concern (or potential legitimate tactic) that David Kopel shoots down without too much trouble. I tend to agree with Kopel that any Second Amendment reciprocity arguments are not likely to have a huge impact on marriage equality, but it's a fun thought experiment. [Volokh]

Wednesday, June 23, 2010

In Other Gay News...

- The DOJ has an LGBT employee association, and they hand out a yearly community service award to individuals serving the LGBT community. This year's award went to D.C. Councilman David Catania for his work advancing marriage equality in the District. [Blog of Legal Times]

- Because hearing from the Department of Health and Human Services wasn't enough, the ladies of The View tackle whether or not the gays should be allowed to give blood. [The Advocate]

- Courtney Joslin of UC Davis School of Law has posted her article, Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines, on SSRN. [Via Legal Theory Blog]