Tuesday, July 21, 2009
Tuesday, October 21, 2008
Thursday, October 2, 2008
Monday, September 29, 2008
WSBA's press release (Sept. 22, 2008) is here.
Thursday, September 25, 2008
Intersectionality: African Americans, Religion and Marriage Rights for the LCBT Community in California
Tuesday, September 23, 2008
New in the Library:
Dishonorable Passions, by William N. Eskridge, Jr. (KF9328.S6 E84 2008 at Classified Stacks). The publisher's description:
From the Pentagon to the wedding chapel, there are few issues more controversial today than gay rights. As William Eskridge persuasively demonstrates in Dishonorable Passions, there is nothing new about this political and legal obsession. The American colonies and the early states prohibited sodomy as the “crime against nature,” but rarely punished such conduct if it took place behind closed doors. By the twentieth century, America’s emerging regulatory state targeted “degenerates” and (later) “homosexuals.” The witch hunts of the McCarthy era caught very few Communists but ruined the lives of thousands of homosexuals. The nation’s sexual revolution of the 1960s fueled a social movement of people seeking repeal of sodomy laws, but it was not until the Supreme Court’s decision in Lawrence v. Texas (2003) that private sex between consenting adults was decriminalized. With dramatic stories of both the hunted (Walt Whitman and Margaret Mead) and the hunters (Earl Warren and J. Edgar Hoover), Dishonorable Passions reveals how American sodomy laws affected the lives of both homosexual and heterosexual Americans. Certain to provoke heated debate, Dishonorable Passions is a must-read for anyone interested in the history of sexuality and its regulation in the United States.
Tuesday, June 17, 2008
Con el apoyo de su padre y del gobernante Partido Comunista -departamentos ideológico y de cultura-, Mariela Castro, hija del nuevo líder cubano, encabezó a mediados de mayo una cruzada nacional contra la homofobia que estremeció los cimientos machistas cubanos sostenidos durante cinco siglos.Id. (transliteration: "With the support of her father and the ideological and cultural departments of the ruling Communist Party, Mariela Castro, daughter of the new Cuban leader from the middle of May headed a national campaign agabnist homophobia that was meant to shake the foundaitonal Cuban machismo privileged during the last five centuries"). Id.
Wednesday, May 21, 2008
In brief, all three judges on the panel found the policy to be constitutionally infirm.
The plaintiff raised both substantive due process and equal protection claims.
The two judges writing in the majority held as follows:
(1) Substantive due process claim: The judges concluded that Lawrence v. Texas requires heightened (intermediate) scrutiny of the law because it infringes on a fundamental right. Under that standard, as articulated by the judges, the law must (a) significantly further (b) an important governmental interest; and (c) the law must be necessary to further that interest, with no less intrusive means available that would further the interest. The analysis is to be done on an as-applied basis to each person impacted by the policy.
(2) Equal protection claim: The judges concluded that such a claim is subject only to rational basis scrutiny and that it survives such scrutiny (based on prior precedent in the Circuit).
The third judge would go further, holding as follows:
(1) Substantive due process claim: He would apply strict scrutiny.
(2) Equal protection claim: He would apply strict scrutiny, for two different reasons: (a) that gays and lesbians are a suspect class; and (b) the statute impinges on a fundamental right.
Thursday, May 15, 2008
Here is my summary of the Court's holding:
(1) The Court held that it violates the California constitution to allow opposite-sex but not same-sex couples to marry, applying strict scrutiny for three different reasons:
(a) A fundamental right is involved (right to marry) under the due process and privacy clauses of the California constitution
(b) Sexual orientation discrimination is involved. Court holds that such discrimination is, like race and gender discrimination, subject to strict scrutiny under California's equal protection clause. Court further holds that you don't need to show current political powerlessness, nor do you need to show immutability.
(c) Fundamental right prong of California's equal protection clause
(2) The court held that it is unconstitutional to have a parallel scheme of"domestic partnerships." It leaves open the possibility that the legislature could change the name of "marriage" for everyone so that everyone gets a domestic partnership."
Wednesday, May 7, 2008
Read the decision here:
Monday, May 5, 2008
The following statement, released by Mrs. Loving last year, on the 40th anniversary of Loving v. Virginia, tells you all you need to know about this remarkable woman:
Loving for All
By Mildred Loving
Prepared for Delivery on June 12, 2007,The 40th Anniversary of the Loving vs. Virginia Announcement
When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.
We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.
When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?
Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.
We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.
Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”
My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.
Sunday, May 4, 2008
According to the judge, the problem lies in the wording of the law concerning the basic dignity and freedom of man. The first paragraph of the law states that human rights are to be respected according to the principles outlined in the proclamation of the state. The Declaration of Independence mandates "a Jewish state in the land of Israel that will be based on the principles of freedom, justice and peace, in the guiding light of the visions of the prophets of Israel." The prophets of Israel did not look favorably upon homosexual relationships.Id. Stay tuned.
Monday, April 28, 2008
And here is the Christian Post's analysis of the article, using it as proof that same-sex marriage will change heterosexual marriage...for the worse:
Thursday, April 24, 2008
Friday, April 11, 2008
I was poking around some news stories and came across the following http://365gay.com/Newscon08/04/041008fla.htm.
From what I understand, essentially, gay-straight alliances in public schools are always in court fighting for recognition. however, in this case the judge dismissed the case because the named student in the case graduated the high school - so there is no case or controversy anymore. The judge refused to allow current students to be added to the suit to keep it alive. So now current students must start the suit over again. The original district court suit was filed over 2 years ago.......so what are your thoughts on this issue evading review because of mootness????
Wednesday, March 12, 2008
Sally Kern (born 27 November 1946, Jonesboro, Arkansas) is an Oklahoma state legislator from Oklahoma City. Kern, a member of the Republican party, represents House District 84. A former teacher, she graduated from the University of Texas and East Texas State University. She is married to Steve Kern, pastor of Olivet Baptist Church. . . . . , Kern made national headlines when she stated "I honestly think [homosexuality is] the biggest threat our nation has, even more so than terrorism or Islam - which I think is a big threat, OK? Cause what's happening now is they are going after, in schools, two-year olds...And this stuff is deadly, and it’s spreading, and it will destroy our young people, it will destroy this nation." After receiving attention for the remarks, Kern said "I said nothing that was not true" and refused to apologize.
For discussion of the lawmaker's reactions to exposure and her refusal to apologize for her remarks, see, e.g., Kern vows not to apologize for remarks against homosexuals; Oklahoma State Rep.: Gays “Biggest Threat” to U.S.; PlanetOut online news; JMBzine: Rep. Sally Kern responds to anti-gay hate speech.
Friday, March 7, 2008
Professor Gabilondo raises a question made possible only by technology--the consequences of being able to choose the sexual reorientation of a baby. In a world in which choices are already being made about the sex of infants to be conceived and brought to term, the question has a number of interesting eddies and ramifications.
Thursday, October 11, 2007
The articles present a range of opinion, but first one I looked at (George W. Dent, Jr., How Does Same-Sex Marriage Threaten You?, 59 Rutgers L. Rev. 233) got my dander up. It took the position that same-sex marriage is a threat to society because heterosexual marriage is important for reproduction and child-rearing and, ultimately, social stability. Well, it was my bad luck for choosing that article: I'd thought it would finally explain to me how same-sex marriage threatens heterosexual marriages (the author didn't really mean to include me in the "you" of his title), but it didn't.
I suppose we all choose what to believe based on our existing beliefs and assumptions. I believe the studies that say that kids do pretty well with gay or lesbian parents. On the other hand, Prof. Dent believes the people who say that those studies are flawed. He believes that "Children conceived by artificial reproductive technologies and reared apart from one or both biological parents 'hunger for an abiding paternal presence.'" (59 Rutgers L. Rev. 233, 242)
In this instance, I have a lot of social scientists on my side. The American Psychological Association filed an amicus brief in Lewis v. Harris (as it has done in many cases, including the marriage equity cases here in Washington). The APA summarizes:
APA's brief provides the Court with the scientific and professional literature pertinent to the issues before the Court. * * * The brief addresses the extensive psychological literature that has found no difference between same-sex and heterosexual couples on characteristics such as levels of intimacy, feelings of commitment and desire for relationships * * * .The full brief is available here.
Additionally, the brief addresses the large number of children raised by lesbians and gay men, both in same-sex couples and as single parents. APA takes the position that ending the prohibition on marriage for same-sex partners is in the best interest of the children being raised by these parents as the children will benefit from the legal stability and other familial benefits that marriage provides. The brief cites empirical research which shows that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents.
Unlike past APA briefs supporting same-sex couples, this brief also addresses the social and psychological benefits – to both gay and heterosexual people – of marriage as an institution. The brief states that allowing same-sex couples to marry would give them access to the legal, social, and economic support that already facilitate and strengthen heterosexual marriages as well as end the antigay stigma imposed by the State through its same-sex marriage ban. Also addressed are invalidities in the research presented by opponents of same-sex marriage.
In summary, the APA brief states that there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.
This raises issues of cognitive authority. Why do I believe "my" experts while he believes his? He did have footnotes to support his statements, after all -- it's not that he made it all up. I'm not inclined to believe his experts because I'm committed to believing that I'm OK, my relationship is OK, and my relationship doesn't really jeopardize society. For his part, he's not likely to believe the experts cited in the APA's brief. Before believing them, he would probably counter that the APA (or at any rate the APA's leadership that agrees to amicus filings) has been taken over by benighted fools who can't judge research, or mischaracterize results to suit the GLBT community.
What does it take to change one's beliefs, to be open to the long string of studies the APA cites rather than the books and articles Prof. Dent cites?
The mayor of San Diego changed his mind, apparently because was able to generalize from his lesbian daughter to all the people excluded from the straights-only marriage law. Sanders changes mind on gay marriage: Mayor supports effort to overturn state ban, Union-Tribune, Sept. 20, 2007.
Not everyone will have an LGB or T family member -- but more and more people know that they know, respect, and like bent folks, and that makes them more open to changing their beliefs about social science, policy, and law.
Speaking of developing public awareness:
Thanks to Outlaws for today's activities in celebration of National Coming Out Day! It was great to see people around the law school wearing badges proclaiming their support of LGBT rights. I didn't get a chance to pick up my sticker until late in the day, but I have it now: "I DO Support Marriage Equality."
Friday, September 7, 2007
- Mall-restroom evictions raise transgender ire, Seattle Times, Sept. 7, 2007. Two ftm transgendered people used a men's room at Pacific Place and were hauled out by security. They were in town for the Gender Odyssey (an FTM conference), and so about 40 others went to the mall as a group for a pee-in.
- Ellen Goodman offers some sense on the Craig mess: When it comes to Craig, we must separate the law from the lewd, Seattle Times, Sept. 7, 2007.
Yet the stings go on. Craig was only one of 40 arrested since May in Minneapolis. There were 45 arrested in the Atlanta airport this year. How many elsewhere? There must be saner ways to keep a restroom from becoming a meeting ground, better than using a dubious law that shames men into pleading guilty for the same reason Craig did: humiliation and the fear of exposure.
Friday, August 31, 2007
DK: Okay Urn, I just wanna start off with a your side of the story, okay. So, a
LC: So I go into the bathroom here as I normally do, I'm a commuter too here.
LC: I sit down, urn, to go to the bathroom and ah, you said our feet bumped. I believe they did, ah, because I reached down and scooted over and urn, the next thing I knew, under the bathroom divider comes a card that says Police. Now, urn, (sigh) that's about as far as I can take it, I don't know of anything else. Ah, your foot came toward mine, mine came towards yours, was that natural? I don't know. Did we bump? Yes. I think we did. You said so. I don't disagree with that.
DK: Okay. I don't want to get into a pissing match here.
LC: We're not going to.
So allow me to be a bit provocative: As the tapes make clear, the state continues to take as its basic premise that same sex solicitation is closer to prostitution and other acts of lewdness, than it is to the casual solicitation of affective (sexual) interest between people of different sexes (and specifically between adult men and women). The state spends little time policing against any but the rudest forms of solicitations of sexual interest between men and women. The state devotes a tremendous amount of energy on vice--both sex for hire (whatever the sex of the participants) and sex between (in this case) men. That conflation ought to trouble us today far more than it did back in the days before Lawrence. Until the expression of sexual desire among anyone but heterosexual couples is uncoupled from the prostitution/lewdness construct, the expression of non conformist sexual desire will remain suspect, irrespective of the availability of the safe harbors" of civil unions and "gay" spaces.
Thursday, August 30, 2007
Wednesday, August 29, 2007
"I am not gay. I never have been gay."Sen. Craig gives up four Senate committee seats; colleagues call for resignation, Idaho Statesman, Aug. 29, 2007.
It raises the question: what is it to be gay? Could the allegations about his seeking anonymous sex in a men's room be true and his statement that he's not gay also be true?
They say (I don't have a citation handy) that the large majority of men who sexually abuse boys identify as straight. It seems plausible to me that that many men who seek anonymous sexual encounters with other men in restrooms, parks, etc., might likewise identify as straight.
On the other hand, it seems quite plausible that men could identify as gay and not have sex with men (let alone anonymous sex in public places).
Another question raised by Sen. Craig's statement is why he would so vehemently deny being gay. Well, because he probably sees it as shameful -- indeed more shameful than either (a) being caught soliciting anonymous sex or (b) having such poor judgment as to plead guilty to a crime he didn't commit without consulting counsel (which is what he says he did).
Tuesday, August 7, 2007
Anyone is free to post a comment about an existing post—just click on the word "comment" at the end of a relevant post and follow the instructions.
Moreover, if you would like to put up a new post on a topic that is germane to this blog, just send me an email message with your name and email address and I will be more than happy to add you on as an authorized author! (To send me an email, just click on my name on the list of contributors on the right-hand side of the screen, and then click on the word "email" under contacts when my profile pops up).
Saturday, August 4, 2007
On August 3, 2007, the U.S. Court of Appeals for the Tenth Circuit affirmed a trial court decision striking down the statute as unconstitutional under the Full Faith and Credit Clause of the U.S. Constitution. The opinion discusses the distinction between the full faith and credit that must be given to sister-state laws in making choice-of-law decisions (minimal) from the full faith and credit that must be given to sister-state judgments such as adoption decrees (exacting).
The opinion can be found at the following link (although it is 37 pages long, most of it is dedicated to standing; the merits of the case are addressed on pages 25-37 of the opinion):
Friday, August 3, 2007
The author begins with a 19th century state case recognizing a polygamous marriage among Chippewa Indians because the tribe at that time recognized such marriages. He uses that as a springboard into the same-sex marriage debate and what it could possibly mean for tribal sovereignty. Pieces of the puzzle:
- After Goodridge two lesbians applied for (and were denied) a marriage license on the Cherokee reservation. Their appeal was dismissed on procedural grounds.
- The Navajo Nation passed a Defense of Marriage Act. The federal DOMA explicitly mentions Indian tribes as sovereigns that don't have to recognize marriages recognized by other states and tribes.
- Drafts of the proposed constitutional amendment to preserve marriage as heterosexual only do not mention Indian tribes.
If someone registered as a domestic partner in Washington State is hurt on the Yakama Nation reservation and taken to a clinic there, does the partner get to visit and make decisions?
Monday, July 30, 2007
Quite a contrast from current US policy, which not only bans openly gay individuals from serving in the military, but also requires discharged gay servicemembers to repay the government for the tuition costs that the government paid on their behalf. See, e.g., Hensala v. Department of the Air Force, 343 F.3d 951 (9th Cir. 2003).
Read about the details here:
Sunday, July 29, 2007
In response, the California-based Pacific Justice Institute (http://www.pacificjustice.org/) filed suit, claiming that the Mayor's actions violated Washington's Defense of Marriage Act. In pertinent part, the act (R.C.W. 26.04.010) provides as follows:
"Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable."
The trial court rejected the challenge. PJI filed an appeal, but then put their appeal on hold pending the Washington Supreme Court's ruling on the constitutionality of Washington's Defense of Marriage Act. After the Washington Supreme Court upheld the constitutionality of the Act, PJI revived its appeal, which was recently argued before the Washington Court of Appeals.
You can find the Mayor's public defense of the executive order's constitutionality here: http://www.seattle.gov/mayor/issues/gay_qa.htm. The first part of his defense--that the Defense of Marriage Act is unconstitutional--has been rejected by the Washington Supreme Court (although the Washington Supreme Court did not reach its constitutionality under the Federal constitution, only the state one). But the second part of his defense would still seem to hold: that nothing in the Act purports to preempt a city law such as the executive order.
It seems like a no-brainer of a case, but I have not been able to get my hands on any briefs in the case. Any thoughts on the issue?
Saturday, July 28, 2007
See Gain v. Carroll Mill Co., Inc., 114 Wash.2d 254, 787 P.2d 553 (1990) (dissent).
"There is another, but separate point which requires discussion. One of the fundamental issues in this type of case is determination of the class of persons whose peril causes the mental distress. In other words, what was the relationship of the plaintiff to the victim? That question should pose no issue here because the plaintiffs were father and brother of the decedent.
If recovery is allowed, this relationship is a protected one. 3 F. Harper, F. James & O. Gray, Torts § 18.4, at 690 (2d ed.1986).
Nonetheless, the majority causes substantial confusion for future cases. The majority haphazardly refers to the relationship as involving a “family member,” a “loved one,” a “relative,” and the “victim.” The majority provides no guidance as to the legal meaning of these imprecise and unnecessary categories. I assume that the majority's loose language will, someday, require us to decide whether a pet *267 is a family member or a loved one. There is a split of authority on that one. Roman v. Carroll, 127 Ariz. 398, 621 P.2d 307 (1980) holds no; Campbell v. Animal Quarantine Station, 63 Hawaii 557, 632 P.2d 1066 (1981) holds yes."
Thursday, July 26, 2007
"Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."
Recently, a man who physically assaulted his live-in girlfriend and who was indicted for domestic violence invoked the second sentence of this amendment to argue that the state's domestic violence law was unconstitutional to the extent that it applied to people like himself and his girlfriend. His argument was that the statute—which applies not only if the victim is the accused's legal spouse but also if she is "living as a spouse"—violates the second sentence of the statute in that it created "a legal status...approximat[ing]...marriage."
In State v. Carswell, the Ohio Supreme Court rejected this argument, reasoning that the intent of the second sentence of the constitutional amendment was to prevent the state from circumventing the command of the first sentence by creating a status "similar to marriage," such as a civil union. The dissent, however, would rely on the plain text of the amendment to hold the statute unconstitutional, although recognizing this as an "unintended consequence" of the amendment. The opinions can be found at:
Which of the opinions is more persuasive? Which of the opinions is a more favorable one from a gay rights perspective? Most people would say that the majority opinion is more favorable, but is it really? Isn't the dissent's opinion, which forces the broader electorate to deal with the "unintended consequences" of the constitutional amendment, more likely to cause voters in Ohio to reconsider and perhaps vote to repeal such an amendment? Indeed, concerns over such "unintended consequences" made Arizona the first state to reject such an amendment, with many of the "no" votes coming from senior citizens concerned that such an amendment would ban laws that allowed heterosexual senior citizens to enter into domestic partnerships (laws designed to allow them to get some of the benefits of marriage without having to give up some social security benefits).
The law provides a limited set of rights for couples who register as domestic partners, including:
- the right to visit one's partner in the hospital
- the right to make medical decisions for one's partner
- the right to receive information from a partner's health care providers about that partner's condition
- the right to administer the estate of a partner who dies without a will
- inheritance rights if one's partner dies without a will
- the right to be listed on a deceased partner's death certificate
- the right to authorize a partner's autopsy and to receive copies of a partner's autopsy reports and records
- the right to control the disposition of a deceased partner's remains (as well as the right to make anatomical gifts)
- the right to be buried as a couple
- the right to seek damages in a civil action for a partner's wrongful death
The proponents of the new law plan to add additional rights in future legislative sessions. What rights (and duties) do you think should be added next (keeping in mind that the state legislature can only address state, not federal, rights)?
As someone who specializes in evidence law, a right that I would like to see added is the right to prevent your domestic partner from being forced to testify against you in court, as well as the right to prevent one's former domestic partner from testifying about confidential communications made between one another when you were "partnered" (that word doesn't roll off the tongue quite like the word "married," does it?).
What else should be on the high priority list? If you could pick one right or duty added in the next legislative session, what would it be?
Why the name "Bent" Law for this blog? There are a few reasons: (1) it is the opposite of the word "straight"; (2) it is British slang for "gay"; (3) I like it better than the word "queer," and I prefer it to alphabet soup terms like GLBTQ...; (4) it is the name of a song by Matchbox 20 that I am rather fond of; and (5) "Gay" Law was already taken by someone else!