Queer Justice: Nolo's LGBT Law Blog

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).

Who would have expected that Iowa would be the next U.S. state to have full marriage equality? But today the Iowa Supreme Court ruled that the state's law limiting marriage to one man and one woman violates the state Constitution's guarantee of equal protection.

The Supreme Court's decision was unanimous; the justices held that a law that is inconsistent with the state constitution must be declared void, even if it is "supported by strong and deep-seated traditional beliefs and popular opinion." The Iowa court found that sexual orientation is a suspect class, so that any law affecting that class must be reviewed under a heightened level of scrutiny.

The court rejected the argument that the same-sex couples weren't "similarly situated" to heterosexual couples because we "can't procreate naturally." It also concluded that the state's position that opposite-sex parents provide the optimal environment for raising children doesn't provide a valid basis for limiting marriage to opposite-sex couples -- even if that's true, the court said, the law doesn't prohibit sexual predators, deadbeat parents, abusers, or violent felons from marrying and becoming parents, and so it can't prohibit same-sex couples from doing so. (Gee, thanks.) Other arguments considered and rejected by the court: promoting the stability of opposite-sex relationships, conservation of resources, and finally, tradition and religious opposition.

The decision will become final in 21 days. That means same-sex couples should be able to marry beginning April 24.

During the presidential caucuses, we hear it said that, "As Iowa goes, so goes the nation." One can only hope!

A federal judge ruled in favor of two students seeking to establish a student club called the "Gay-Straight Alliance" at a north Florida high school. A federal judge ruled today in the ACLU's lawsuit against the school district that the local school board must grant official recognition to the Gay-Straight Alliance and allow the group the same privileges to which other official school organizations are entitled.

My gosh, there's a lot going on. This article on Salon.com summarizes new developments in the same-sex marriage universe, including a challenge to the federal Defense of Marriage Act (DOMA) to be filed tomorrow in Massachusetts by Gay and Lesbian Advocates and Defenders (GLAD).

Tomorrow brings oral arguments in the California Supreme Court on Proposition 8, the voter-approved constitutional amendment banning same-sex marriage in the state where this same court had approved it in May. Stay tuned for a debrief here after the argument.

Lots of chatter in the blogosphere today about the Op-Ed piece in Sunday's New York Times, positing a theory of "reconciliation" between the gay and faith communities on the issue of same-sex marriage. David Blankenhorn and Jonathan Rauch, purportedly holding opposing views on same-sex marriage, agreed on a solution: The feds should sanction same-sex marriage and civil unions authorized at the state level, and confer federal rights and benefits of marriage on those relationships, but only if the state in question has a "robust religious-conscience exception" that allows religious organizations to refuse to recognize same-sex relationships.

Yeah? That brings us back to the question of who in good conscience can oppose the desire of two consenting adults to participate in one of the most important -- and, though it's rarely noted in this debate, one of the most conservative -- of society's institutions. It's just hard to buy the notion of a conscientious objector to same-sex marriage, which harms no one.

And then there's this: "It's also important, though, to remember that the tension is not between the gay and the faith communities. The tension is between the community which in fact really is gay, and a pseudo-faith community which has nothing to do with God, love, or anything of real 'faith' and it's really just hypocrisy and hatred. So any faith community that deserves the title 'faith community' really won't have a problem with these issues." So says Sean Penn on Huffington Post on February 20. And if that isn't enough, check out Penn's acceptance speech at the Oscars on February 22. Somehow I don't think that the man who played Milk is buying the reconciliation thing.