Recently in Civil Rights Category

March 30, 2011

USCIS Hold Ends As Quickly As It Began

Just two days ago, I blogged about an announcement from the U.S. Citizenship and Immigration Services (USCIS) that it would put on hold decisions about cases involving same-sex binational couples--a seeming big step away from the discriminatory policies based on the Defense of Marriage Act (DOMA) that have previously dominated the agency's decision-making. Here's an informative Daily Beast story about the hold.

It didn't exactly seem too good to be true--that status would be reserved for an actual repeal of DOMA. However, the hold was apparently too good for something, and it has already been lifted. USCIS announced on March 30, 2011, through press secretary Christopher S. Bentley, that, "The guidance we were awaiting ... was received last night, so the hold is over," and "we're back to adjudicating cases as we always have." Bentley went on to say that USCIS would continue to "enforce the law," in other words refuse to recognize same-sex marriages for purposes of approving green card applications.

Is this the last word on the subject? Not necessarily. With the Justice Department's new position that DOMA is unconstitutional, plans by members of Congress to seek repeal of DOMA, and various cases challenging DOMA winding their way through the U.S. court system, it's likely that the Supreme Court will rule on DOMA's constitutionality within the next few years--which will of course affect green card applications for married same-sex partners.

March 14, 2011

New York City Issues Non-Discrimination Policy on Transgender Marriage Licenses

In December of 2009, an opposite-sex couple went to the City Clerk's office in the Bronx and asked for a marriage license. Because the clerk felt that neither would-be spouse looked like the sex listed on the drivers' licenses the two presented, they were asked for their birth certificates and when they could not produce them, were denied a marriage license. 

After the Transgender Legal Defense and Education Fund filed a complaint last October, New York City responded by issuing a new policy to all city clerks. The new policy states that "City Clerk employees are forbidden from considering the applicant's appearance or preconceived notions related to gender expression when deciding whether to issue a marriage license." You've gotta figure TLDEF wrote that excellent language, right? Either way, though, it's now city policy. 

In addition, the agreement requires the city clerk to apologize to the couple, institute training for employees regarding gender identity and expression, and allow the couple to marry when and where they want.
March 10, 2011

House Republicans Vote to Defend DOMA

Because apparently they've got nothing better to do despite claiming a focus on jobs and economic development, the House GOP voted to defend the Defense of Marriage Act (DOMA) in court in the wake of the Justice Department's announcement in February that the DOJ would no longer do so. 

The decision could cost millions of dollars as Congress and the House general counsel will likely hire outside counsel to defend the cases now before the court--currently numbered at 10. 

Seems like a questionable use of taxpayers' money while Congress struggles to pass a budget (the Republican version of which would cut services and jobs), especially given that the President and the administration's lawyer have said that they believe the law is unconstitutional and indefensible
February 23, 2011

Obama Says DOMA Unconstitutional

On orders from President Obama, the Justice Department will stop defending the federal Defense of Marriage Act (DOMA) in cases now pending in the federal courts, based on the President's conclusion that the law is unconstitutional.

Attorney General Eric Holder today sent a letter to Speaker of the House Boehner explaining that the President and the Department of Justice have re-examined the law in light of two new cases and determined that Section 3 of DOMA is unconstitutional "as applied to same-sex couples legally married under state law." Section 3 states that the federal government recognizes only marriages between a man and woman. 

The most significant conclusion set forth in Holder's letter is this one: "[T]he President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny." This means that any law that treats people differently based on their sexual orientation must meet the highest legal standards--it's not enough that the law simply have a rational basis. Instead it must meet much more rigorous Constitutional tests. 

Other courts have applied strict scrutiny in marriage equality cases, but having the support of the President and the DOJ for this level of scrutiny is an enormous step forward. It also provides the basis for the President's turnaround--in the past, Holder said, the DOJ has defended DOMA cases because the level of scrutiny was lower. Having determined that heightened scrutiny applies, the administration is no longer able to defend the law. 

This means that two cases now proceeding through the federal courts will do so without opposition from the federal government. The Huffington Post reports that the DOJ will advise the courts in these two cases of the government's policy change. Here's a link to a Washington Post opinion piece about those cases. 
February 16, 2011

Civil Unions Approved in Hawaii

The Hawaii legislature today approved a civil union bill that would provide same-sex couples with the same rights and responsibilities enjoyed by opposite-sex married couples in the Rainbow State. Governor Abercrombie has said that he will sign the bill within the next ten days; if he does, it will take effect on January 1, 2012. 

This brings things full circle for Hawaii, which was the first state to have a court ruling that excluding same-sex couples from marriage was discriminatory and illegal. This case was one of the catalysts for the original Defense of Marriage Act, enacted in 1996, and for a lengthy backlash against same-sex marriage. 
January 13, 2011

Passport Applications to Recognize the Reality that Same-Sex Families Exist

Parents applying for passports for their minor children will find a change starting February 1. Instead of simply having spaces for "Mother" and "Father" to state their names, the forms will say "Mother or Parent 1" and "Father or Parent 2." The Washington Post reported last Friday that references to "mother" and "father" would be removed entirely, causing a fuss from conservatives. In response, Secretary of State Hilary Clinton apparently decided to include both a gendered and a gender-neutral designation for each parent. 

It's cool to see the federal government adjusting its most important identity document in this way. Every step the feds take toward accepting the reality of same-sex families makes those families' lives a little bit easier and brings us a little bit closer to full equality. Given the post-election reality of state legislatures, these small steps on the federal level may be all we get for a while. 
January 5, 2011

Ninth Circuit Asks California Supreme Court to Weigh in on Prop 8 Standing Question

At oral argument in January, the three-judge Ninth Circuit panel hearing arguments on the constitutionality of California's Proposition 8 (banning same-sex marriage) considered the question whether the proponents of Prop 8 even have the right to appeal. The proponents were appealing a Northern District of California ruling that held Prop 8 unconstitutional, but they were alone in doing so--both the then-Governor and the then-Attorney General of California declined to join in the appeal.

The question of standing has to be answered before the court addresses the constitutional issues, because if the proponents don't have standing, there's nothing to consider--the most likely outcome is that the case is over and Judge Walker's ruling stands. However, the Ninth Circuit judges decided that the issue of standing is one of California law that the California Supreme Court should answer, and they "certified the question" to the California Supremes--that's lawyer talk for asking another court to rule on something. 

The California Supreme Court must now decide whether it will accept the Ninth Circuit's request--most likely, it will do so. Both sides will submit more briefs, and there might be another round of oral argument. There's no required time frame for the Supreme Court to issue a decision, so this case will be significantly delayed compared to how long it would have taken if the Ninth Circuit had simply ruled on the issue. We can hope, however, that the Supreme Court will move quickly to help resolve an important issue in a case that involves the legal rights of thousands of LGBT citizens. 
August 9, 2010

Prop 8 Update

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.    
August 4, 2010

Judge Rules Prop 8 is Unconstitutional

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.

March 8, 2010

Same-Sex Marriage Now Legal in District of Columbia

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.