Queer Justice: Nolo's LGBT Law Blog

Yesterday was the final day of testimony in the federal trial challenging Prop 8, which took away the right to marry from same-sex couples in November of 2008. The plaintiffs put on a powerful case and made a thorough record of the ways that marriage matters and the reality of discrimination against LGBT folks, while the defendants offered...well, not much. There's nothing I could write that would be as articulate and complete as the daily commentary offered by Shannon Minter, Legal Director of the National Center for Lesbian Rights, at Pam's House Blend blog. The link here will take you to the Day 12 blog post, and at the end of that post are the links for all of the other days. Enjoy. 

Today the American Psychological Association resolved, by a vote of 125-4, that mental health professionals should not advise clients that homosexuality can be "cured" through therapy or other treatments.

The vote of the governing council to the 150,000 member association was based on a new APA report that in turn relied on extensive evidence that so-called "reparative therapy" not only doesn't work, but is often the cause of serious harm, including suicidal tendencies and depression, according to a lengthy AP story issued this afternoon.

About time. And can we find out who the therapists who voted against the resolution are, so we can be sure to stay away?

The Oregon Court of Appeals issued an opinion this week in a lesbian parentage dispute that held a non-biological lesbian mom who consented to the insemination of her partner with donor sperm was a legal parent, just as a husband would be in the same situation under Oregon law. I'll leave the explanation of the ins and outs of the opinion to this excellent post by expert Nancy Polikoff. In other good news, a recent case out of the California Court of Appeals held that the legal standard for "holding out" a child as one's own child, which is one basis for a finding of parentage in California, was met by even a short period of time in which the parent and child lived together. Another great explanation of the case at Nancy Polikoff's site.

Is it a cluster? In the last week, we've seen two stories in quick succession about same-sex kisses causing a fuss in public places. First, at Chico's Tacos in El Paso, Texas (where a recent violent police raid on a gay bar in Forth Worth also merited a lot of attention), two gay men and their friends were ousted from the restaurant by a security guard after one kissed the other while they stood in line to order their food.

Next, two gay men were detained by a security guard and then cited by police for trespassing in Main Street Plaza in Salt Lake City, Utah, after one man kissed the other on the cheek. The Plaza is the property of the Mormon Church and the church claimed they were merely keeping the couple from engaging in "inappropriate behavior" on church property and that they would have done the same to any couple. Funny, that's about the same thing Chico's said -- the couple wasn't singled out for being gay, because they would have kicked out a heterosexual couple engaging in public displays of affection, too.

In Salt Lake City, dozens of straight and gay couples staged a "kiss-in" this week at the same Plaza to protest the Church's actions.  

New York Governor David Paterson is a stalwart supporter of same-sex marriage rights, and he has the grand marshal chops to prove it -- yesterday, Paterson was the first-ever Governor of New York to serve as a grand marshal in New York City's annual Pride parade. The Governor expressed his disappointment, however, that the Pride revelers weren't able to celebrate the coming of full marriage equality to the Empire State. The problem is with the New York legislature's inability to get just about anything done in the midst of a battle over who controls the Senate. The same-sex marriage bill passed, 89-52, in the Assembly, but the Governor now isn't sure when he will introduce the same-sex marriage bill in the Senate. 

Yikes! How has it been so long since I've posted, when there's so much going on out there? Here's a quick selection of interesting items from the last week.

On the 40th anniversary of the Stonewall rebellion, the New York Times ran an article and an op-ed piece about the condition of gay rights in the U.S., both with the same basic premise: the American public is way ahead of the American government on the issue of rights for LGBT people. Adam Nagourney's Political Memo takes President Obama to task for failing to live up to his campaign promises on equality for the LGBT community; Frank Rich's op-ed rightly notes that "It's a press cliché that 'gay supporters' are disappointed with Obama, but we should all be. Gay Americans aren't just another political special interest group. They are Americans who are actively discriminated against by federal laws."

Last week, Representative Barney Frank introduced a new Employment Non-Discrimination Act in the House of Representatives. Read about it at Nolo's Employment Law Blog.

And this morning, President Obama is meeting with gay rights leaders at the White House to commemorate the 40th anniversary of Stonewall. After the disappointments of the past month, that should be an interesting conversation.

It's official: New Hampshire is the sixth state to legalize same-sex marriage. The bill was signed into law by Gov. John Lynch earlier today. Gov. Lynch does not personally support same-sex marriage, and his signing of the bill was predicated on lawmakers' adding a provision which guaranteed that religious groups and churches would not be forced to perform wedding ceremonies or recognize same-sex marriages. He says he would have vetoed any bill without this added language.

Today's ratification of the bill leaves Rhode Island as the only state in New England without legal same-sex marriage. So, Rhode Island, what's the holdup?

I'm off to Book Expo America this week, but here's a post on the latest developments from California's Supreme Court from guest blogger Frederick Hertz, co-author of the upcoming book Making It Legal.

In a decision that wasn't unexpected, the California Supreme Court ruled that Proposition 8 was a valid exercise of the voters' right to amend the state constitution -- and was not a revision, which would have required legislative action to put on the ballot. One disturbing fact is that the decision was 6-1, with only Justice Carlos Moreno dissenting. Another is that the Justices focused on the fact that same-sex couples have access to marital rights and obligations through California's domestic partnership registration system. While technically the Court is correct that the rules of marriage apply now to state-registered domestic partners, this decision backtracks from the 2008 opinion that recognized the larger social meaning of the word "marriage."

Also as predicted, the Court upheld the validity of the approximately 18,000 marriages that were solemnized between June and November 2008. Those couples will be treated as legally married in California and in any other state that recognizes same-sex marriage, and all the rights (and obligations) of marriage will still apply to them.

One major issue the Court did not rule on is the question of whether marriages from other states will be recognized from now on. Given this uncertainty, couples married outside of California should consider registering as domestic partners -- which they can do even if already legally married -- so that if their marriage is not recognized in California, they will still have the protections of marriage as domestic partners.

Attorney Frederick Hertz

Quietly, in my view (page A22 of the New York Times, page A18 of the San Francisco Chronicle), the State Department has promised to offer equal benefits and protections to the same-sex partners of U.S. diplomats. Secretary of State Hilary Clinton acknowledged that "Like all families, our Foreign Service Families come in different configurations."

The news came in a memorandum from Clinton to an association of gay and lesbian Foreign Service officers. It's a long time in coming and a welcome change, one that addresses issues of basic fairness and, as Clinton also remarked, one that will support recruitment to the State Department.

Moving quickly, the legislature in Maine passed a same-sex marriage bill this week, and Governor Baldacci, who in the past has opposed same-sex marriage, signed it immediately upon its passage in the Senate today. Baldacci stated that he had changed his mind about allowing same-sex couples to marry and had come to see it as a "question of fairness and of equal protection under the law," and to believe that "a civil union is not equal to civil marriage."

Pretty soon you won't be able to count marriage equality on one hand, and won't that be nice?

Just a quick followup on an earlier post here about Diane Schroer, the former Army commander who won a lawsuit last October against the Library of Congress for employment discrimination on the basis of gender identity. Yesterday, a judge awarded her $491,190 in back pay and damages.

In an LA Times article, Schroer said she was "happy with the judgment but more importantly that the judge recognized her treatment as job discrimination", linking the high rates of underemployment for transgendered individuals to the continued acceptance of discrimination against them in society. What makes this ruling especially significant? According to the ACLU, this is the first time a federal judge has affirmed that it's a violation of federal law to discriminate against someone for changing genders.

By a vote of 249 to 175, the United States House of Representatives voted today to pass a bill (H.R. 1913) that would include the categories of sexual orientation, gender, gender identity, and disability in existing federal hate crimes legislation for the first time. This is especially good news for the transgender community, which continues to be targeted disproportionately in bias-motivated crimes. If you have any doubts about that, you didn't follow the Angie Zapata trial in Colorado, which recently ended with a guilty verdict against the murderer of a transgender woman. The hate crimes bill now moves to the Senate.

Beginning this morning, same-sex wedding bells are ringing in Iowa. A number of couples obtained waivers of Iowa's three-day waiting period and were legally married on the day the recent state Supreme Court decision became effective.

A related MSNBC story describes Iowa's history as a state in the "forefront on social issues," including segregation, slavery, and women's rights. Apparently we should not be surprised that Iowa is now one of only four states offering full marriage equality to its lesbian and gay citizens.

Seemingly out of the blue, the District of Columbia City Council, D.C.'s governing body, voted unanimously on Tuesday to recognize same-sex marriages legally performed in other states. This doesn't necessarily mean it's going to happen -- the vote isn't final, and once it is it has to go to the mayor for approval and then to the U.S. Congress for a legislative review and vote, according to this CNN story. But it's a big step forward for D.C. and another positive development in the march toward marriage equality.

Sheesh! Every time you turn around, some state or another is achieving marriage equality! At the rate of two per week, we'll have the country turned around before baseball season's over. 

But I digress. The latest to jump on the marriage equality bandwagon is Vermont, which became the first state to legalize same-sex marriage by legislative action rather than court decision. The legislature passed a bill last week that removed from Vermont's law the requirement that married couples be of the opposite sex, and then overrode Governor Jim Douglas's veto to become the fourth state in the U.S. to offer full marriage equality (following Massachusetts, Connecticut, and Iowa).