Queer Justice: Nolo's LGBT Law Blog

Mexico Supreme Court Upholds Same-Sex Marriage

2010-08-09T17:45:59Z

Same-sex couples celebrated as the Mexican Supreme Court upheld a new law permitting same-sex marriage in Mexico City, ruling that individual states should not be allowed to make their own decisions about whether to permit same-sex marriage. The court will rule soon on two other aspects of the law: whether gay couples can adopt children, and whether the marriages in the capital city must be recognized in other districts.

Prop 8 Update

2010-08-09T17:22:18Z

Quite a lot has happened in the few days since Judge Walker issued his opinion in Perry v. Schwarzenneger, holding that Proposition 8 violates the 14th Amendment to the Constitution and that same-sex couples have the same right to marry as opposite-sex partners.

Pretty much concurrently with issuing the opinion, Judge Walker also issued a temporary stay that means the ruling doesn't go into effect right away. He asked for written briefs from the parties about whether he should extend the stay until the losers have a chance to appeal the decision, and those were submitted on Friday, August 6. There's no word on when the judge might rule on the issue.

If Judge Walker decides to keep the temporary stay in place, wedding bells will remain silent in the Golden State for some years to come while the case makes its way to the Ninth Circuit Court of Appeals (which has already created a special page for documents related to the Perry case, even though nothing's been filed with them yet) and then, presumably, to the United States Supreme Court. And if he lifts the temporary stay and says that same-sex couples can marry, the other side could appeal that decision to the Ninth Circuit on an "emergency" basis. (Bet you didn't know the possibility of you marrying your same-sex partner could be an emergency, did you?)

Somewhat surprisingly, both Attorney General Jerry Brown and Governor Arnold Schwarzenneger asked Judge Walker to lift the stay and allow same-sex couples to begin marrying immediately.

In the plaintiffs' request to lift the stay, attorneys make an interesting argument. During the trial, the actual defendant in the case, the State of California, declined to defend Prop 8 in court. Instead, a group called "defendant-intervenors," consisting of pro-Prop 8 groups and individuals, defended the proposition at trial. The plaintiffs now argue that the defendant-intervenors, because they are not the original defendants, do not have standing--meaning they don't have the right--to bring an appeal. Professor Arthur Leonard explains this much better than I could at his Leonard Link blog, so I direct you there for the full scoop. If Judge Walker and the Ninth Circuit agree with this analysis, then the opinion will stand--good news for California and for the couples who want to marry right away, but not necessarily for anyone who wants to see the Supreme Court rule on same-sex marriage soon.

Stay tuned for further developments.

Judge Rules Prop 8 is Unconstitutional

2010-08-04T21:13:49Z

Judge Vaughn Walker issued his opinion today in Perry v. Schwarzenegger, the federal challenge to Proposition 8, which in 2008 took away the right of same-sex couples to marry in California. Judge Walker's 136-page opinion holds that Prop 8 does not pass constitutional muster because it "unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation." The court held that the right to marry applies to all persons regardless of gender, and that the right to same-sex marriage is not a new right, as defendants claimed, but the right to have their relationships recognized for what they are: marriages.

In addition, Judge Walker ruled that California's domestic partnership laws do not satisfy the state's obligation to allow citizens to marry. "Domestic partnerships exist solely to differentiate same-sex unions from marriages... California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples."

The judge's ruling includes a permanent injunction against enforcement of Proposition 8, which in theory means that same-sex couples can marry again in California. But the Prop 8 supporters have already asked Judge Walker to issue a stay of the opinion and prevent any same-sex marriages from taking place while the case is on appeal to the Ninth Circuit, its next destination on its way to the U.S. Supreme Court. It's likely the stay will be granted and no marriages will actually take place; watch this blog and the website of the National Center for Lesbian Rights for updates.

The decision comes after Judge Walker heard two weeks of testimony in January, and closing arguments in June. The end result is not surprising, given that the Prop 8 supporters presented very little evidence to support their position--as Judge Walker noted, "the minimal evidentiary presentation made by [Prop 8 supporters] does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest." On the other hand, the plaintiffs and their counsel, Ted Olsen and David Boies, put together a powerful case that included not just the emotional testimony of the plaintiffs themselves, but also the testimony of experts in sexual orientation, and child development, all of which went to prove that Prop 8 was a product of animus toward same-sex couples.

Despite the inevitability of the appeal, the LGBT community and justice-loving folks everywhere can enjoy Judge Walker's eloquent defense of our constitutional right to participate fully in society. Full equality is coming; it's just a matter of time.

Same-Sex Marriage Now Legal in District of Columbia

2010-03-08T17:21:00Z

Tomorrow, Tuesday, March 9, same-sex weddings will begin in the District of Columbia after more than a hundred couples lined up last Wednesday to get their marriage licenses and start the three-day waiting period. Washington, D.C. became the sixth United States jurisdiction to allow same-sex marriage, joining Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont.

Five other states (California, Nevada, New Jersey, Oregon, and Washington) offer marriage-equivalent relationships for same-sex couples, while Colorado, Hawaii, Maine, Maryland, Rhode Island, and Wisconsin all provide certain limited rights and benefits to same-sex couples who register with the state.

At this point, nearly half of all American citizens live in a place where there is some sort of recognition of same-sex relationships, whether it's marriage, marriage-equivalent, marriage-lite, or simply the recognition of marriages performed in other states. Given how much confusion is created by the federal government's failure to recognize any of these relationships, we can only hope that a repeal of the federal Defense of Marriage Act will be coming soon.

Prop 8 Trial Testimony Completed

2010-01-28T19:07:01Z

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.

Therapy to "Cure" Gayness Repudiated by APA

2009-08-05T22:28:06Z

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?

Lesbian Parentage Cases Good News for Moms

2009-07-18T18:23:34Z

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.

Public Displays of Affection Causing Problems

2009-07-15T20:06:12Z

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.

Marriage Equality in New York Up in the Air Despite Governor's Support

2009-07-02T17:05:48Z

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.

Pride Roundup

2009-06-29T16:06:55Z

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.

Same-Sex Marriage Legal in New Hampshire

2009-06-03T22:16:22Z

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?

California Supreme Court Upholds Proposition 8, Recognizes Pre-Election Marriages

2009-05-29T22:41:45Z

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

Gay Diplomats to Receive Partner Benefits

2009-05-24T16:47:51Z

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.

Maine is Fifth State to Legalize Same-Sex Marriage

2009-05-06T17:49:29Z

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?

Transgender Veteran Awarded Nearly $500,000 in Discrimination Suit

2009-04-30T16:20:24Z

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.